Homart Development Co. v. Graybar Electric Co.

63 A.D.2d 727, 405 N.Y.S.2d 310, 24 U.C.C. Rep. Serv. (West) 51, 1978 N.Y. App. Div. LEXIS 11655

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 1978
• Status: Published

Opinion

In an action to recover damages for breach of a contract for the sale of an underground electric feeder cable, plaintiff appeals from an order of the Supreme Court, Rockland County, entered October 18, 1977, which granted defendants’ motion for summary judgment. Order affirmed, with $50 costs and disbursements. The affirmation of plaintiff’s attorney in opposition to the motion was comprised almost exclusively of hearsay representations and, as such, was legally insufficient to defeat the motion (see CPLR 3212, subd [b]). We are, moreover, satisfied that the following descriptive statement, taken from a portion of defendant Triangle’s product literature, does not, under the facts of this case, rise to the level of a warranty which "explicitly extends to [the] future performance of the goods”: "The excellent moisture resistent, ozone resistent and aging characteristics of Everene (Cross-Linked) polyethylene insulation, combined with the * * * characteristics of [its] Trioseal Jacket constitute a cable designed to give long and reliable service” (emphasis supplied). (See Uniform Commercial Code, § 2-725, subd [2]; cf. Mittasch v Seal Lock Burial Vault, 42 AD2d 573.) Damiani, J. P., Titone, Rabin and Gulotta, JJ., concur.