Slomin's, Inc. v Niranjan (2012 NY Slip Op 50055(U))

Slomin's, Inc. v Niranjan

2012 NY Slip Op 50055(U) [34 Misc 3d 140(A)]

Decided on January 13, 2012

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.

Slomin's, Inc., Appellant,

against

Violet Niranjan and Permaud Naidu, Respondents. -x

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered November 15, 2010. The order denied plaintiff's motion for summary judgment on the complaint and to dismiss defendant Permaud Naidu's counterclaim.

ORDERED that order is modified by providing that the branch of plaintiff's motion seeking to dismiss defendant Permaud Naidu's counterclaim is granted; as so modified, the order is affirmed, without costs.

In this action based upon defendants' alleged nonpayment of monies owed pursuant to an alarm installation contract and an alarm monitoring contract, plaintiff moved for summary judgment on the complaint and to dismiss defendant Permaud Naidu's counterclaim for breach of contract. In opposition to the motion, defendants alleged that they had paid the charges due under the contracts for the months in question and that, after the date of plaintiff's alleged cancellation of the contracts, plaintiff's representatives had continued to indicate, in essence, that the account was still in effect. The Civil Court denied plaintiff's motion.

As the Civil Court properly found that defendants' nonconclusory allegations in opposition to plaintiff's motion, including the claim that they had paid the charges for the months in question, raised triable issues of fact, we affirm the denial of the branch of plaintiff's motion [*2]seeking summary judgment on the complaint. However, defendants' opposing papers failed to address the branch of plaintiff's motion seeking the dismissal of defendant Permaud Naidu's counterclaim based upon express counterclaim-waiver provisions in the two contracts. Thus, as there was no showing that the counterclaim sounded in fraud (Federal Deposit Ins. Corp. v Marino Corp., 74 AD2d 620 [1980]) or that the counterclaim-waiver provisions were otherwise unenforceable, that branch of plaintiff's motion should have been granted.

Accordingly, the order is modified by providing that the branch of plaintiff's motion seeking to dismiss defendant Permaud Naidu's counterclaim is granted.