GLASER v. SALZHAUER (1998)

In consolidated actions to recover damages, inter alia, for breach of contract and breach of warranty, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (McCarty, J.), entered July 3, 1997, as denied that branch of their motion which was for summary judgment dismissing the defendants' claims against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The instant actions arise from the sale of a mare, Keep Her Barefoot, by the plaintiffs Yizhar Glaser and Stephen Lang (hereinafter the sellers) to the defendants Charles Salzhauer and Cynthia Salzhauer (hereinafter the buyers).   Shortly after the sale, the mare aborted the foals she carried and the buyers refused to pay the stud fee.   The sellers paid the fee and commenced this action to recover payment of the fee.   The buyers commenced a separate action against the sellers alleging, inter alia, breach of contract under Uniform Commercial Code article 2, the warranty of merchantability, and the warranty of fitness for a particular purpose.   The two actions were thereafter consolidated.

The sellers moved, inter alia, for summary judgment dismissing the claims of the buyers.   We find that the trial court properly denied the motion, as the sellers failed to make a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to demonstrate the absence of any material issues of fact (see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The sellers' remaining contentions are without merit.

MEMORANDUM BY THE COURT.