Belden-Stark Brick Corp. v. Morris Rosen & Sons, Inc., 10 U.C.C. Rep. Serv. (West) 821 (N.Y. App. Div. 1972). · Go Syfert
Belden-Stark Brick Corp. v. Morris Rosen & Sons, Inc., 10 U.C.C. Rep. Serv. (West) 821 (N.Y. App. Div. 1972). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 1985 · …subject to liability for damages for the same personal injury, injury to property or wrongful death ⚠ not in text
18 citation events (1 in the last 25 years) across 4 distinct courts.
Strongest positive: Mom's Bagels of New York, Inc. v. Sig Greenebaum Inc. (nyappdiv, 1990-08-23)
Top citers, strongest first. 3 distinct citers. How cited ↗
discussed Cited as authority (rule) Mom's Bagels of New York, Inc. v. Sig Greenebaum Inc.
N.Y. App. Div. · 1990 · confidence medium
(See, Belden-Stark Brick Corp. v Rosen & Sons, 39 AD2d 534, 535 [1st Dept 1972], affd 31 NY2d 884 [1972].) Further, we find that the plain meaning of the word "otherwise”, appearing after the words "breach of warranty or”, encompasses within it any defect concerning the operability of the oven, including the absence of an MEA number.
discussed Cited "see" Oneida Indian Nation of New York v. New York
N.D.N.Y. · 2002 · signal: see · confidence high
See Wood v. City of New York, 39 A.D.2d 534 , 330 N.Y.S.2d 923, 924 (N.Y.A.D. 1st Dept. 1972) (stating that the critical test for contribution is a shared responsibility for causing the same injury, even thought the theories of liability were different).
discussed Cited "see, e.g." Katz v. Press Management Corp.
N.Y. Sup. Ct. · 1983 · signal: see, e.g. · confidence low
It has long been established that to adequately oppose a motion for summary judgment a party must “lay bare” its proof where the movant’s papers establish a prima facie basis for the grant of the motion (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:16, pp 436, 437; see, e.g., Belden-Stark Brick Corp. v Rosen & Sons, 39 AD2d 534 , affd without opn 31 NY2d 884 ).
Retrieving the full opinion text from the archive…
Belden-Stark Brick Corp.
v.
Morris Rosen & Sons, Inc.
Appellate Division of the Supreme Court of the State of New York.
Apr 20, 1972.
10 U.C.C. Rep. Serv. (West) 821
Cited by 4 opinions  |  Published

Order, Supreme Court, New York[*535] County, entered on August 16, 1971, denying plaintiff’s motion for summary-judgment, unanimously reversed, on the law, and plaintiff’s motion granted, judgment awarded plaintiff as prayed for and defendant’s counterclaim dismissed. Appellant shall recover of respondents $50 costs and disbursements of this appeal. Appeal from the order of said court, entered on October 21, 1971, unanimously dismissed as academic, without costs and without disbursements. In this action to recover the unpaid balance for brick sold and delivered to the defendant Rosen and to recover such balance against the principal and sureties on a payment bond, the defendants rely upon a defense and counterclaim alleging defects in the brick delivered and damages resulting therefrom. The defense and counterclaim were properly challenged by the plaintiff on its motion for summary judgment and the proofs submitted by plaintiff showed prima facie that they are lacking in merit. Thereupon, it was mandatory upon the defendants to submit evidentiary facts or materials, by affidavit or otherwise, furnishing prima facie support for the defense and counterclaim. (See Indig v. Finkelstein, 29 A D 2d 851, affd. 23 N Y 2d 728.) There was a failure, however, as a matter of law, to support the allegations that the “ brick was not properly packed, so that there were an inordinate number of chip and spalls, which necessitated this defendant in assigning men and expending large sums of money for the culling of the brick ” and that The brick which was furnished was not in accordance with the approved sample ”, and that the defendant Rosen & Sons, Inc., was thereby damaged. There is no adequate showing as to the nature and extent of the alleged chipping and spalling. In fact, defendant Rosen admits that it is unable to specify how many bricks in each delivery were defective, and, no factual data was offered to support a claim that the ehippage exceeded the percentages allowable and the contract standards. Furthermore, the contract specifically provides that the Seller’s liability for the quality * * * of material shipped shall in all cases be limited to the cost of replacing such material as may be rightfully rejected because of inferior quality or color. Seller shall not he liable for any consequential damage of any kind whatever, or for the installation or handling cost of rejected material.” We conclude that this provision is applicable and binding to prevent a recovery of the damages claimed by the counterclaim (see Uniform Commercial Code, § 2-719, subd. [3]). Finally, the defendants failed to plead and present any factual support for the claim that economic duress was perpetrated by the plaintiff upon the defendant Rosen (cf. Austin Instrument v. Loral Corp., 29 N Y 2d 124). Settle order on notice. Concur—Markewieh, J. P., Nunez, Kupferman, Murphy and Eager, JJ.