Opinion
June 25, 1992
Appeal from the Supreme Court, New York County (William J. Davis, J.).
We disagree with the IAS court that a triable issue of fact exists as to whether payment was due upon delivery of the first or second lot of the goods given that the parties' controlling contract, plaintiff's January 13, 1987 sales confirmation, expressly made delivery of the two lots severable by providing for shipment in "January/February, 1987", that defendant expressly requested separate deliveries and provided a letter of credit permitting for partial shipment, that the goods were delivered by plaintiff and accepted by defendant and that defendant never paid for or made any arrangements to pay for either lot (see, UCC 2-307). Thus, defendant's failure to open a proper letter of credit to pay for either installment of the shipments constituted a breach of its contract with plaintiff, entitling plaintiff to demand payment for the goods delivered and to withhold the balance of the shipment due under the contract (UCC 2-703 [a]; 2-325 [2]; Indovision Enterprizes v. Cardinal Export Corp., 44 A.D.2d 228, affd 36 N.Y.2d 811; Penn v Valiante, 228 App. Div. 552, affd 255 N.Y. 533).
Plaintiff is also entitled to summary judgment on defendant's counterclaims. These counterclaims are based upon plaintiff's refusal to deliver the second lot of goods after defendant's failure to provide the letter of credit as agreed. Defendant's failure to make any efforts to pay for the goods delivered and accepted deprived it of any claim to monetary damages arising as a result of the plaintiff's rightful demand for payment and refusal to deliver the second lot (UCC 2-703 [a]).
We have reviewed the parties' remaining claims and find them to be without merit.
Concur — Carro, J.P., Kupferman, Asch and Smith, JJ.