94 A.D.2d 660 | N.Y. App. Div. | 1983
— Order, Supreme Court, New York County (M. Evans, J.), entered October 25, 1982, which denied plaintiff’s motion for summary judgment and for an order dismissing defendant’s affirmative defenses and counterclaims unanimously reversed, on the law, with costs, plaintiff’s motion granted in its entirety and defendant’s affirmative defenses and counterclaims are dismissed, and summary judgment awarded to plaintiff in the amount of $134,536.61, plus interest from October 20,1981, costs and disbursements. The plaintiff, Kohl & Madden Printing Ink Corp. (K & M), commenced selling ink to the defendant, Goshen Litho, Inc. (Goshen), in 1972 or 1973, and has been Goshen’s principal supplier since late 1975. During the period from December, 1980 through April, 1981 Goshen ceased paying K & M’s bills. After April, 1981 K&M refused to sell any more ink to Goshen. On July 1, 1981 K&M rendered a final statement of account to Goshen in the sum of $154,536.61. In August, 1981 K&M agreed to a schedule of payments in full satisfaction of the final account, pursuant to which Goshen delivered a series of 15 postdated checks for $10,000 each, payable monthly, commencing August 20,1981, and a final check dated November 20,1982 for $4,536.61. The first two checks were deposited and cleared. Goshen stopped payment on the third $10,000 check, which was payable October 20,1981. On December 9,1981 K&M commenced an action for goods sold and delivered and for an account stated for the balance due. In its answer Goshen asserted four affirmative defenses and counterclaims based on fraud and breach of warranty, alleging in essence that during the period from 1975 through April, 1981 the ink supplied by K & M was