Spider v A.J. Pegno Constr. Corp./Tully Constr., Inc. (2008 NY Slip Op 01600)

Spider v A.J. Pegno Constr. Corp./Tully Constr., Inc.

2008 NY Slip Op 01600 [48 AD3d 320]

February 21, 2008

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, April 16, 2008

Spider, a Division of Safeworks, LLC, Appellant,
v
A.J. Pegno Construction Corp./Tully Construction, Inc., a Joint Venture, Respondent, et al., Defendants.

—[*1] Mazur, Carp & Rubin, P.C., New York City (Sayward Mazur of counsel), for appellant.

Alvin Goldstein, New York City, for respondent.

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered April 23, 2007, which denied plaintiff's motion for partial summary judgment dismissing Pegno's counterclaim, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Whether all the damages claimed by Pegno in its counterclaim fall within the scope of the contract provision disclaiming consequential damages is immaterial under the circumstances of this case. The contract specifically prohibits recovery for "substitute products" and the affidavit of plaintiff's principal that the claimed damages were "substitute products" was unrebutted. Furthermore, defendant failed to offer any proof in admissible form that it suffered damages that were not related to substitute products or that the contract remedy failed of its essential purpose. (UCC 2-719 [2]; J.C. MacElroy Co. v Arben Corp., 276 AD2d 434 [2000]). Concur—Lippman, P.J., Tom, Nardelli, Catterson and Moskowitz, JJ.