Rivers v. Ben Construction Corp.

¶1Order unanimously modified to dismiss counterclaim and grant plaintiff’s motion for summary judgment for the return of her $1,000 payment and interest from the date of payment, and otherwise affirmed, with costs to plaintiff-appellant, without prejudice to her proceeding with respect to her claim for $10,000 additional damages as alleged in her complaint. Memorandum: Defendant admits in its answer that the contracts were retail installment obligations. None of the several documents signed by the parties, however, complies with section 402 of the Personal Property Law. We disagree with the court below that the several documents, or two of them, read together comprise a contract in compliance with subdivision 7 of section 402 of said law. Accordingly, the contract set forth in defendant’s counterclaim is invalid, and plaintiff’s motion for judgment dismissing it should have been granted, and likewise her demand for the return of the $1,000 which she admittedly paid to defendant should be repaid to her with interest from September 11, 1966, the date of payment. (Ben Constr. Corp. v. Snushall, 44 Misc 2d 878, affd. 24 A D 2d 842.) (Appeal from order of Onondaga Special Term, granting motion for change of venue and denying motion to dismiss counterclaim.) Present — Williams, P. J., Bastow, Marsh, Witmer and Henry, JJ. [53 Misc 2d 299.]