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LABARBA v. MORRELL & COMPANY, THE WINE EMPORIUM, LTD.

272 A.D.2d 165 (2000)

710 N.Y.S.2d 24

TONY LABARBA, Also Known as ANTHONY LABARBA, Appellant, v. MORRELL & COMPANY, THE WINE EMPORIUM, LTD., Respondent.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided May 16, 2000.

Plaintiff is not entitled to summary judgment upon his cause of action for goods sold and delivered. Since that cause of action was not the subject of motion practice before the IAS Court, plaintiff cannot obtain summary judgment upon a search of the record by this Court (see, Dunham v Hilco Constr. Co., 89 N.Y.2d 425, 429-430). Moreover, plaintiff admittedly breached the written sales contract by not shipping his entire wine collection...

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