Pepper v. Tech Photo Products, Inc.

In an action for goods sold and delivered and for recovery for goods specially manufactured for the defendant, plaintiffs move to strike the answer and counterclaim and for summary judgment on plaintiffs’ causes of action.

Defendant asserts that there was either no delivery of the goods or where delivery was made it was too late and not in accordance with the parties’ agreement, causing defendant' to sustain damages of approximately $28,000 which far exceeds the amount claimed to be due plaintiffs.

*515Where a counterclaim is interposed by defendant for a sum exceeding the damages demanded by plaintiffs, the court will not grant summary judgment (Ætna Life Ins. Co. v. National Drydock & Repair Co., 230 App. Div. 486). The defendant has shown sufficient facts tending to show that the counterclaim is meritorious. Accordingly the motion is denied.

Submit order.