FISONS CORPORATION v. SWEETENERS PLUS INC (1999)

 Supreme Court properly denied the motion of defendant for summary judgment dismissing the complaint or, in the alternative, for partial summary judgment limiting its liability to the purchase price of the goods it delivered to plaintiff.   The court erred, however, in granting plaintiff's cross motion for summary judgment.   Summary judgment is a drastic remedy and should not be granted “if there is any significant doubt as to the existence of a triable issue, or if there is even arguably such an issue” (Hourigan v. McGarry, 106 A.D.2d 845, 845-846, 484 N.Y.S.2d 243, appeal dismissed 65 N.Y.2d 637;  see also, Moskowitz v. Garlock, 23 A.D.2d 943, 259 N.Y.S.2d 1003).   There is arguably a triable issue of fact whether defendant breached its contract with plaintiff by failing to provide it with USP grade sugar.   There are also issues of fact whether the terms and conditions attached to plaintiff's purchase order were provided to defendant to support the cause of action for breach of express warranty and whether defendant breached the implied warranties of merchantability and fitness for a particular purpose (see, UCC 2-314, 2-315).   With respect to the cause of action for breach of implied warranty of merchantability, plaintiff failed to meet its initial burden of establishing as a matter of law that the sugar delivered by defendant could not be used in pharmaceuticals (see generally, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   In reaching that conclusion, we note that plaintiff failed to establish that the recall of its products was required by the Food and Drug Administration.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: