Caprice Travel Agency v Santoliquido

[*1] Caprice Travel Agency v Santoliquido 2008 NY Slip Op 50083(U) [18 Misc 3d 132(A)] Decided on January 3, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 3, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., LaCAVA and SCHEINKMAN, JJ
2007-243 W CR.

Caprice Travel Agency, Respondent,

against

Michael Santoliquido c/o San Sign & Awnings, Appellant.

Appeal from a judgment of the City Court of the City of Yonkers, Westchester County (Charles D. Wood, J.), entered September 26, 2006. The judgment, after a nonjury trial, awarded plaintiff the sum of $816.59 and dismissed defendant's counterclaim.

Judgment reversed without costs and judgment directed to be entered dismissing plaintiff's cause of action and, upon the condition that defendant return to plaintiff the subject awning within 30 days of the date of the order entered hereon, awarding defendant the sum of $1,959.38 on his counterclaim; otherwise judgment modified by vacating the award in favor of plaintiff and by dismissing plaintiff's action, and as so modified, affirmed without costs.

In this commercial claims action, plaintiff sought to recover, inter alia, its down payment by reason of defendant's breach of a contract pursuant to which defendant was to sell plaintiff a custom-made awning. Defendant counterclaimed for the cost of the awning and its removal as a result of plaintiff's alleged breach of contract. A review of the record on appeal supports the conclusion that defendant had in fact fulfilled his obligations under the contract and it was plaintiff who breached same. Accordingly, it cannot be said that substantial justice has been done between the parties according to the rules and principles of substantive law, and the lower court erred in awarding judgment to plaintiff and dismissing defendant's counterclaim (see UCCA 1804-A, 1807-A). However, defendant's recovery of the price (UCC 2-709) is contingent upon his returning to plaintiff the subject awning which defendant removed from plaintiff's premises (see UCCA 1805-A; UCC 2-709 [2]). While defendant established his entitlement to recovering the price as indicated, his proof was insufficient to establish his right to recover the cost of the removal of the awning which he did as an accommodation to plaintiff to make certain [*2]modifications to the awning.

We note that, under the circumstances, plaintiff is, in any event, not entitled to restitution of its down payment pursuant to section 2-718 (2) of the Uniform Commercial Code, since, pursuant to UCC 2-718 (3), the defendant-seller has established that it is entitled to retain the full amount of the down payment as it has established damages offsetting any right by plaintiff to recovery.

Rudolph, P.J., LaCava and Scheinkman, JJ., concur.
Decision Date: January 3, 2008