Annex Manufacturing Corp. v. Georges Gotlib, Inc.

Appellate Division of the Supreme Court of New York

Annex Manufacturing Corp. v. Georges Gotlib, Inc.

186 A.D.2d 361, 588 N.Y.S.2d 773, 1992 N.Y. App. Div. LEXIS 11040

Appellate Division of the Supreme Court of the State of New York·Decided October 1, 1992·Published

Opinion

— Order, Supreme Court, New York County (Myriam J. Altman, J.), entered January 8, 1992, which, insofar as appealed from, denied plaintiff’s motion for summary judgment, unanimously affirmed, without costs.

Triable issues of fact exist as to the fifth and largest of the invoices involved in the action, including whether a timely objection was made to it (see, James Talcott, Inc. v United States Tel. Co., 52 AD2d 197), and whether the delay in objecting, if any, was reasonable (see, Camp, Dresser & McKee v City of Niagara Falls, 142 AD2d 973). Nor can it be said as a matter of law that plaintiff did flawless work in a timely fashion, which was accepted by defendant without timely objection of any sort, and which was then accepted by defendant’s customer without complaint as to plaintiff’s work.

We do not consider plaintiff’s argument, presented for the first time on appeal, that defendant disposed of allegedly defective goods in violation of UCC 2-515. Were we to consider it, we would find it to be without merit, since no such sales of goods were here involved (see, Milau Assocs. v North Ave. Dev. Corp., 42 NY2d 482). Concur — Milonas, J. P., Rosenberger, Ellerin and Rubin, JJ.

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— Order, Supreme Court, New York County (Myriam J. Altman, J.), entered January 8, 1992, which, insofar as appealed from, denied plaintiff’s motion for summary judgment, unanimously affirmed, without costs.

Triable issues of fact exist as to the fifth and largest of the invoices involved in the action, including whether a timely objection was made to it (see, James Talcott, Inc. v United States Tel. Co., 52 AD2d 197), and whether the delay in objecting, if any, was reasonable (see, Camp, Dresser & McKee v City of Niagara Falls, 142 AD2d 973). Nor can it be said as a matter of law that plaintiff did flawless work in a timely fashion, which was accepted by defendant without timely objection of any sort, and which was then accepted by defendant’s customer without complaint as to plaintiff’s work.

We do not consider plaintiff’s argument, presented for the first time on appeal, that defendant disposed of allegedly defective goods in violation of UCC 2-515. Were we to consider it, we would find it to be without merit, since no such sales of goods were here involved (see, Milau Assocs. v North Ave. Dev. Corp., 42 NY2d 482). Concur — Milonas, J. P., Rosenberger, Ellerin and Rubin, JJ.

Annex Manufacturing Corp. v. Georges Gotlib, Inc., 186 A.D.2d 361, 588 N.Y.S.2d 773, 1992 N.Y. App. Div. LEXIS 11040 (N.Y. Ct. App. 1992).

Pincite

186 A.D.2d 361 (Annex Manufacturing Corp. v. Georges Gotlib, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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