MOBILE COMMUNICATIONS PLUS INC v. EISNER COMPUTER SOLUTIONS LLC (2001)

Supreme Court, Appellate Division, Second Department, New York.

MOBILE COMMUNICATIONS PLUS, INC., Appellant, v. EISNER COMPUTER SOLUTIONS, LLC., Respondent.

Decided: September 10, 2001

FRED T. SANTUCCI, J.P., SONDRA MILLER, NANCY E. SMITH and STEPHEN G. CRANE, JJ.

Joseph M. Buderwitz, White Plains, N.Y. (Denise M. Cossu of counsel), for appellant. Vandenberg, Feliu & Peters, LLP, New York, N.Y. (Raymond L. Vandenberg and Sanjay B. Malhotra of counsel), for respondent.

In an action to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (DiBlasi, J.), dated September 26, 2000, as denied its motion for summary judgment on the complaint.

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

The Supreme Court correctly concluded that the plaintiff failed to establish, as a matter of law, its entitlement to the return of its downpayment. Issues of fact exist, inter alia, as to whether the plaintiff was aware of and had assented to, the no-cancellation term (see, Williams v. Dover Home Improvement, 276 A.D.2d 626, 714 N.Y.S.2d 318; Gniewek v. Consolidated Edison Co., 271 A.D.2d 643, 707 N.Y.S.2d 871).

The parties' remaining contentions are without merit.

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