| Struna v Stolfe |
| 2006 NY Slip Op 52285(U) [13 Misc 3d 143(A)] |
| Decided on November 29, 2006 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Plaintiff appeals from an order of the Civil Court, New York County (Geoffrey D. Wright, J.), entered on or about April 22, 2004, which dismissed the complaint and awarded defendant $6,000 on his counterclaim.
PER CURIAM
Order (Geoffrey D. Wright, J.), entered on or about April 22, 2004, modified to vacate the $6,000 damages award to defendant and dismiss defendant's counterclaim, and as so modified, affirmed, without costs.
We sustain the dismissal after trial of plaintiff's main action. The evidence, fairly considered, supports the court's determination that plaintiff wrongfully repudiated the governing contract of sale. However, the award of damages to defendant on his counterclaim cannot be sustained since defendant failed to produce evidence to establish the difference between the market price of the "work prints" at the time and place for tender and the unpaid contract price (see UCC § 2-708[1]; see also Haughey v. Belmont Quadrangle Drilling Corp., 284 NY 136, 143 [1940]).
This constitutes the decision and order of the court.
I concur I concurI concur
Decision Date: November 29, 2006