Townside Furniture & Decorators, Inc. v. Best Lumber & Millwork Co.

148 A.D.2d 442, 538 N.Y.S.2d 1006, 1989 N.Y. App. Div. LEXIS 2431

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 6, 1989
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Lonschein, J.), dated July 10, 1987, which denied its motion for summary judgment.

Ordered that the order is affirmed, with costs to the third-party defendant Styro Sales Company.

We find, as did the Supreme Court, that triable issues of fact exist as to whether, inter alia, the plaintiff rejected the nonconforming goods in a timely fashion (see, Fil-Coil Co. v International Power Sys. Equip. Corp., 123 AD2d 599; General Elec. Credit Corp. v Xerox Corp., 112 AD2d 30). Accordingly, the plaintiff’s motion for summary judgment was correctly denied.

Additionally, we note that it was proper for the third-party defendant to have opposed the plaintiff’s motion for summary judgment based upon the defenses .available in the main action (see, CPLR 1008; Lewis v Borg-Warner Corp., 35 AD2d 722; T.R. Am. Chems. v Seaboard Sur. Co., 116 Misc 2d 874). Brown, J. P., Eiber, Sullivan and Harwood, JJ., concur.