158 A.D.2d 351 | N.Y. App. Div. | 1990
Questions of fact exist precluding summary judgment. First, defendant’s receipt of the slides without any signed acknowledgment does not necessarily mean that it acquiesced by silence in all the terms of plaintiffs proffered contract as contained in its delivery memo (Matter of Albrecht Chem. Co. [Anderson Trading Corp.], 298 NY 437; Maisel v Gruner & Jahr USA, 89 AD2d 503, 504), and the liquidated damage provision therein might very well be void as a penalty. Also, the terms of the agreement itself raise questions of fact concerning the initial oral agreement between the parties, whether and how it was intended to be modified in writing, and how it might have been affected by the existing relationship between the parties and custom and practice in the trade. Summary judgment was properly denied, and defendant’s document disclosure demands were properly determined to be directed towards a relevant area of inquiry, namely, plaintiffs damages. Concur—Rosenberger, J. P., Asch, Ellerin and Wallach, JJ.