Cuba Cheese, Inc. v. Aurora Valley Meats, Inc.

Appellate Division of the Supreme Court of New York

Cuba Cheese, Inc. v. Aurora Valley Meats, Inc.

113 A.D.2d 1012, 494 N.Y.S.2d 571, 1985 N.Y. App. Div. LEXIS 52629

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 27, 1985

StatusPublished

Cited by8 cases

This text of 113 A.D.2d 1012 (Cuba Cheese, Inc. v. Aurora Valley Meats, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cuba Cheese, Inc. v. Aurora Valley Meats, Inc., 113 A.D.2d 1012, 494 N.Y.S.2d 571, 1985 N.Y. App. Div. LEXIS 52629 (N.Y. Ct. App. 1985).

Pincite

Opinion

Order unanimously affirmed, with costs.

Memorandum: Plaintiff commenced an action for the purchase price of cheese sold and delivered to defendant. Defendant interposed an answer including a counterclaim for damages alleging that plaintiff breached its contract by selling cheese that was unfit for human consumption. Plaintiff appeals from a denial of its motion for summary judgment contending that defendant is barred, as a matter of law, from any remedy because it failed to timely notify plaintiff of the alleged breach (UCC 2-607 [3] [a]). A purchaser, even after acceptance of the goods, may upon timely notification of his intention to do so deduct from the purchase price all or any part of the damages resulting from the seller’s breach (UCC 2-717; Created Gemstones v Union Carbide Corp., 47 NY2d 250). Timely notification is governed by the standard of reasonableness and is a question of fact (UCC 2-607 [3] [a]; General Elec. Credit Corp. v Xerox Corp., 112 AD2d 30). We find sufficient proof in the record to raise a question of fact as to whether defendant timely notified plaintiff of the alleged breach. Special Term, therefore, properly denied the motion. We have examined the other arguments raised by plaintiff and find them to be without merit. (Appeal from order of Supreme Court, Erie County, Doyle, J.—reargument.) Present—Hancock, Jr., J. P., Callahan, Denman, O’Donnell and Schnepp, JJ.

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Order unanimously affirmed, with costs.

Memorandum: Plaintiff commenced an action for the purchase price of cheese sold and delivered to defendant. Defendant interposed an answer including a counterclaim for damages alleging that plaintiff breached its contract by selling cheese that was unfit for human consumption. Plaintiff appeals from a denial of its motion for summary judgment contending that defendant is barred, as a matter of law, from any remedy because it failed to timely notify plaintiff of the alleged breach (UCC 2-607 [3] [a]). A purchaser, even after acceptance of the goods, may upon timely notification of his intention to do so deduct from the purchase price all or any part of the damages resulting from the seller’s breach (UCC 2-717; Created Gemstones v Union Carbide Corp., 47 NY2d 250). Timely notification is governed by the standard of reasonableness and is a question of fact (UCC 2-607 [3] [a]; General Elec. Credit Corp. v Xerox Corp., 112 AD2d 30). We find sufficient proof in the record to raise a question of fact as to whether defendant timely notified plaintiff of the alleged breach. Special Term, therefore, properly denied the motion. We have examined the other arguments raised by plaintiff and find them to be without merit. (Appeal from order of Supreme Court, Erie County, Doyle, J.—reargument.) Present—Hancock, Jr., J. P., Callahan, Denman, O’Donnell and Schnepp, JJ.

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Bluebook (online)

113 A.D.2d 1012, 494 N.Y.S.2d 571, 1985 N.Y. App. Div. LEXIS 52629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cuba-cheese-inc-v-aurora-valley-meats-inc-nyappdiv-1985.

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