SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

104 

CA 13-01266 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ. 

 

EMERALD EQUIPMENT SYSTEMS, INC., 

PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

GEARHART BROTHERS SERVICES, LLC, 

DEFENDANT-RESPONDENT. 

 

FRANK A. SARAT, HOMER, FOR PLAINTIFF-APPELLANT. 

MACKENZIE HUGHES LLP, SYRACUSE (MARK SCHLEGEL OF COUNSEL), FOR

DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Onondaga County

(Deborah H. Karalunas, J.), entered June 12, 2013. The order denied

plaintiff’s motion for summary judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs, the motion is granted,

and the matter is remitted to Supreme Court, Onondaga County, for

further proceedings in accordance with the following Memorandum: 

Plaintiff commenced this breach of contract action seeking to recover

certain payments allegedly due under two equipment leases. The first

cause of action seeks to recover monthly rental payments, the second

cause of action seeks to recover late charges based upon nonpayment of

the rent, the third cause of action seeks damages allegedly incurred

as a result of defendant’s improper operation or maintenance of the

leased equipment, and the fourth cause of action seeks expenses,

including attorney’s fees, that plaintiff incurred to enforce its

rights under the contract upon defendant’s alleged default. Defendant

asserted counterclaims for breach of express warranty and breach of

the implied warranties of merchantability and fitness for a particular

purpose. Plaintiff thereafter moved for summary judgment on the first

and second causes of action, partial summary judgment on liability on

the fourth cause of action, and dismissal of the counterclaims. In

opposition to the motion, defendant did not dispute plaintiff’s

entitlement to the payments due under the terms of the lease

agreements, but asserted that it was entitled to a reduction in rent

based upon delays in defendant’s work occasioned by mechanical

problems with the equipment. Defendant further asserted that

plaintiff “waived any disclaimers of warranty” in the lease agreements

“and/or [that] the leases were modified” such that defendant was not

obligated to pay the entire amount due under the lease agreements

based upon plaintiff’s oral representations, prior course of
-2- 104 

CA 13-01266 

performance, and industry practice.

We agree with plaintiff that Supreme Court erred in denying its

motion inasmuch as plaintiff met its initial burden with respect to

the causes of action and counterclaims at issue, and defendant failed

to raise a triable issue of fact in opposition (see generally

Zuckerman v City of New York, 49 NY2d 557, 562). “[I]nasmuch as

[defendant] seeks to create triable issues of fact solely through the

use of parol evidence, resolution of the propriety of Supreme Court’s

[denial] of summary judgment [in plaintiff’s favor] turns upon whether

parol evidence is admissible in this instance” (State Univ. Constr.

Fund v Aetna Cas. & Sur. Co., 189 AD2d 929, 931-932). It is well

established that “a written agreement that is complete, clear and

unambiguous on its face must be enforced according to the plain

meaning of its terms” (Greenfield v Philles Records, 98 NY2d 562,

569). “Parol evidence—evidence outside the four corners of the

document—is admissible only if a court finds an ambiguity in the

contract” (Schron v Troutman Sanders LLP, 20 NY3d 430, 436; see

Polyfusion Elecs., Inc. v Promark Elecs., Inc., 108 AD3d 1186, 1187). 

Here, parol evidence is not admissible because the lease agreements

unambiguously provide that defendant is responsible for paying the

cost of repairs to the equipment (see Polyfusion Elecs., Inc., 108

AD3d at 1187). 

We further conclude that plaintiff’s conduct in providing a onetime credit to defendant does not constitute a course of dealing

sufficient to modify the terms of the lease agreements (see General

Motors Acceptance Corp. v Clifton-Fine Cent. Sch. Dist., 85 NY2d 232,

237; V.J. Gautieri, Inc. v State of New York, 195 AD2d 669, 671). The

deposition testimony of defendant’s director of operations and project

manager that it was industry practice to “work out the hours” when a

project was completed, rather than to estimate the number of hours in

the contract, is insufficient to raise an issue of fact inasmuch as

“evidence of current industry practice is only admissible to explain

the meaning of terms used in any particular trade, when their meaning

is material to construe the contract” (Niagara Foods, Inc. v Ferguson

Elec. Serv. Co., Inc., 111 AD3d 1374, 1377 [internal quotation marks

omitted]). We further agree with plaintiff that its repair of the

equipment and issuance of an invoice to defendant for the cost of the

repairs was consistent with the terms of the lease agreements and,

therefore, did not modify the terms of the agreements or constitute a

waiver thereof (see UCC 2-A-207 [3]).

Finally, we agree with plaintiff that it is entitled to dismissal

of the counterclaims inasmuch as “the broad, express, and conspicuous

disclaimer of all warranties set forth in the [lease agreements] is

fatal to [defendant’s counter]claims for breach of the implied

warranties of merchantability and fitness for a particular purpose,”

as well as its counterclaim for breach of express warranty (West 63

Empire Assoc., LLC v Walker & Zanger, Inc., 107 AD3d 586, 586; see

Mangano v Town of Babylon, 111 AD3d 801, 802).

We therefore reverse the order and grant plaintiff’s motion, thus

granting judgment on the first and second causes of action and partial
-3- 104 

CA 13-01266 

summary judgment on liability on the fourth cause of action, and we

remit the matter to Supreme Court to determine, with respect to the

fourth cause of action, the expenses, including attorney’s fees, to

which plaintiff is entitled pursuant to the terms and conditions of

the lease agreements (see PHH Mortgage Corp. v Ferro, Kuba, Mangano,

Skylar, Gacovino & Lake, P.C., 113 AD3d 813, ___).

Entered: March 21, 2014 Frances E. Cafarell

Clerk of the Court