AAA Rollaway Protective Pool Fence & Cover Corp. v Guzman

[*1] AAA Rollaway Protective Pool Fence & Cover Corp. v Guzman 2004 NY Slip Op 51243(U) Decided on October 21, 2004 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 21, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2003-1672 N C

AAA ROLLAWAY PROTECTIVE POOL FENCE & COVER CORP., Respondent,

against

JUAN GUZMAN and ANA THOMPSON, Appellants.

Appeal by defendants from a commercial claims judgment of the District Court, Nassau County (S. Fairgrieve, J.), entered February 11, 2003, in favor of plaintiff in the principal sum of $1,000 and dismissing defendants' counterclaim.

Judgment unanimously modified by providing that contemporaneous with the payment of the judgment, plaintiff shall tender the pool cover to defendants; otherwise judgment reversed and judgment directed to be entered dismissing plaintiff's action and in favor of defendants on their counterclaim in the sum of $435. As so modified, judgment affirmed without costs.

In this commercial claims action, plaintiff sought to recover the balance owed for a custom made mesh pool cover which defendants allegedly ordered. When the pool cover was delivered to defendants, defendants rejected same as nonconforming. The
instant action presented issues of credibility which the trial court resolved in favor of plaintiff. We find no basis upon the record to disturb the trial court's determination (see Williams v Roper, 269 AD2d 125 [2000]; Moses v Randolph, 236 AD2d 706, 707 [1997]; see also Ross v Friedman, 269 AD2d 584 [2000]; Makas v Every, 224 AD2d 793 [1996], appeal dismissed 88 NY2d 867 [1996]).

While defendants asserted that they never signed any contract, since the pool cover was specially manufactured for the defendants' pool and is not suitable for sale to others in the ordinary course of plaintiff's business, the oral agreement is enforceable (see UCC 2-201 [3] [a]; Standard Bldrs. Supplies v Gush, 206 AD2d 720 [1994]). While the award in favor of plaintiff should not be disturbed, substantial justice requires that plaintiff tender the pool cover to [*2]defendants (see UDCA 1805-A [a]). Should plaintiff fail to tender the pool cover, defendants would be entitled to judgment on their counterclaim.

Decision Date: October 21, 2004