J. Manes Co. v. Greenwood Mills, Inc.

OPINION OF THE COURT Memorandum. The order of the Appellate Division should be affirmed, with costs. In this motion for summary judgment there is no evidentiary material in the record to support plaintiff’s allegation, and conclusory assertion, that the seller from whom he purchased the goods was in the business of selling goods of that kind (Uniform Commercial Code, § 1-201, subd [9]; § 9-307, subd [1]), or that the defendant was unjustly enriched. This alone is sufficient to sustain the Appellate Division’s determination that the plaintiff is not entitled to summary judgment. In response to the dissent it should be noted that the determination in Tanbro Fabrics Corp. v Deering Milliken (39 NY2d 632, 636-637), that the seller was a seller in the ordinary course, was a factual finding, affirmed by the Appellate Division and supported by sufficient evidence in the record in that case. Although by coincidence the case now before us happens to involve the same seller, the factual findings in Tanbro, of course, are not binding on the defendant in this case who was not a party to that action. Finally we note that we are unable to grant summary judgment to the defendant because the defendant has not taken a cross appeal to this court (City of Rye v Public Serv. Mut. Ins. Co., 34 NY2d 470, 474; People v Consoli [762] dated Edison Co. of N. Y., 34 NY2d 646, 648; Kelly’s Rental v City of New York, 44 NY2d 700, 702). Accordingly, the order of the Appellate Division should be affirmed, without prejudice to the defendant’s right to reassert the cross motion for summary judgment at Special Term, if so advised (see People v Consolidated Edison Co. of N. Y., supra).