Annex Mfg. Corp. v. Georges Gotlib, Inc.

• Decision Date: 01 October 1992
• Citation: 588 N.Y.S.2d 773,186 A.D.2d 361
• Parties: ANNEX MANUFACTURING CORPORATION, Plaintiff-Appellant, v. GEORGES GOTLIB, INC., Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 773

588 N.Y.S.2d 773

186 A.D.2d 361

ANNEX MANUFACTURING CORPORATION, Plaintiff-Appellant, v. GEORGES GOTLIB, INC., Defendant-Respondent.

Supreme Court of New York, Appellate Division,

First Department.

October 1, 1992

Order, Supreme Court, New York County (Myriam J. Altman, J.), entered January 8, 1992, which, insofar as appealed from, denied plaintiff's motion for summary judgment, unanimously affirmed, without costs. Triable issues of fact exist as to the fifth and largest of the invoices involved in the action, including whether a timely objection was made to it (see, James Talcott, Inc. v. United States Telephone Co., 52 A.D.2d 197, 383 N.Y.S.2d 39), and whether the delay in objecting, if any, was reasonable (see, Camp, Dresser & McKee v. City of Niagara Falls, 142 A.D.2d 973, 530 N.Y.S.2d 391). Nor can it be said as a matter of law that plaintiff did flawless work in a timely fashion, which was accepted by defendant without timely objection of any sort, and which was then accepted by defendant's customer without complaint as to plaintiff's work. We do not consider plaintiff's argument, presented for the first time on appeal, that defendant disposed of allegedly defective goods in violation of UCC 2-515. Were we to consider it, we would find it to be without merit, since no such sales of goods was here involved (see, Milau Assocs. v. N. Ave. Dev. Corp., 42 N.Y.2d 482, 398 N.Y.S.2d 882, 368 N.E.2d 1247)..

MILONAS, J.P., and ROSENBERGER, ELLERIN and RUBIN, JJ., concur.