American Bluing Co. v. Bennett Distributors, Inc. , 124 A.D.2d 1019 ( 1986 )

Memorandum: The court erred in granting plaintiff summary judgment for the price of goods sold because defendant has raised a factual issue with respect to whether the purchaser was defendant broker, or defendant’s customer to whom the goods were shipped. Defendant alleged, and plaintiff did not deny, that before the date of the invoice showing a sale to defendant and shipment to defendant’s customer, plaintiff had directed defendant to notify its customers that billing and payment would be handled directly between plaintiff and defendant’s customers, although orders would still be placed through defendant. Therefore, an issue of fact exists as to whether defendant or defendant’s customer is responsible for payment to plaintiff (see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). (Appeal from order of Supreme Court, Erie County, Kuszynski, J. — summary judgment.) Present — Callahan, J. P., Denman, Pine, Balio and Lawton, JJ.