Costruzioni Electtromeccaniche Telemagnetica, S. p. A., Appellant, v. Carole Stupell, Respondent, 20 A.D.2d 691

Order entered on December 7, 1962, denying plaintiff's motion for

summary judgment, unanimously reversed on the law, with $20 costs and disbursements to appellant, the motion for

summary judgment granted, with $10 costs, and the matter remitted to Special and Trial Term for assessment of damages. In this action for damages for breach of contract to purchase 3,000 sets of a telephone amplifier device known as “ Telelift ”, the defense is that the device, as delivered, did not conform to the amplifier that was the subject of the contract, in that it did not transmit messages properly. Defendant contended that it was represented to her that the amplifier would enable a user to speak as well as to listen over a telephone.

There is no triable issue and the papers lack factual basis to pose a bona fide triable issue as to the claimed representation of the plaintiff that the instrument purchased would transmit messages. It is definitely established that the Telelift instrument was demonstrated to defendant long before the purchase order was made and that she was given samples of the instrument about the same time. The purchase order was given after defendant had the opportunity to inspect and examine the samples of the instrument for a period of six months.

Defendant’s correspondence belies the existence of any representation as now claimed and demonstrates that the assertion of misrepresentation is an afterthought. The asserted reliance on the brochure distributed by plaintiff is obviously not bona fide. Apart from the flimsiness of the averments as to «the time when the brochure was first seen by defendant, the record conclusively establishes that defendant relied on the samples of Telelift that were supplied to her before she made her purchase, and not upon any representations in the brochure. The motion for

summary judgment should have been granted, and an assessment directed to ascertain the amount of damages. Settle order on notice. Concur—'Botein, P. J., Breitel, Valente, McNally and Bastow, JJ.