Congress Talcott Corp. v. Shapiro

176 A.D.2d 551

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 10, 1991
• Status: Published

Opinion

— Judgment, Supreme Court, New York County (Francis N. Pécora, J.), entered on March 26, 1990, which, inter alia, found, after a non-jury trial, in favor of plaintiff in the amount of $52,732.14, unanimously affirmed, with costs.

In this breach of contract action, we accord due deference to Supreme Court’s factual findings that defendant agreed to accept late delivery of goods and failed to give reasonable notice of any objection to delivery of goods to a different destination (cf., Matter of Liccione v John H., 65 NY2d 826, 827). Although an oral agreement would not be effective to modify the delivery terms of the original contract (UCC 2-209 [2]), the proof established that the original contract delivery date had been waived by an executed oral modification (UCC 2-209 [4]; Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175). The record also supports the court’s holding that by failing to give reasonable notice of his objection to the place of delivery, Shapiro waived any right to contest the same (UCC 2-605). Concur — Carro, J. P., Wallach, Kupferman, Asch and Kassal, JJ.