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

Appellate Division of the Supreme Court of New York

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

Appellate Division of the Supreme Court of the State of New York·Decided March 6, 1989·Published·Cited by 2 cases

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 [443] 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.

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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 [443] 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.

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 (N.Y. Ct. App. 1989).

Pincite

148 A.D.2d 442 (Townside Furniture & Decorators, Inc. v. Best Lumber & Millwork Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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