Chemical Distributors, Inc. v. Lekem, Inc.

—Order and judgment unanimously reversed on the law without costs and motion denied. Memorandum: Defendant interposed a valid counterclaim for breach of the underlying sales agreement. Thus, Supreme Court erred in granting plaintiff partial summary judgment for the amount allegedly due on goods sold and delivered (see, Created Gemstones v Union Carbide Corp., 47 NY2d 250, 255). There was no statutory or contractual basis for the court’s award of attorney’s fees to plaintiff (see, Locascio v James V. Aquavella, M.D., P. C, 185 AD2d 689), nor is there a basis in 1016 the record for a discretionary award of attorney’s fees to plaintiff as a sanction for frivolous conduct by defendant. (Appeal from Order and Judgment of Supreme Court, Erie County, Sconiers, J. — Summary Judgment.) Present — Pine, J. P., Fallon, Wesley, Doerr and Davis, JJ.