J.I. Hass Co., Inc. v. Frank A. Kristal Associates, Inc.
| Decision Date | 26 February 1987 |
| Citation | 512 N.Y.S.2d 104,127 A.D.2d 541 |
| Parties | , 3 UCC Rep.Serv.2d 159 J.I. HASS CO., INC., Plaintiff-Respondent, v. FRANK A. KRISTAL ASSOCIATES, INC., Defendant-Appellant and Third-Party Plaintiff, et al., Third-Party Defendant. |
| Court | New York Supreme Court — Appellate Division |
J.L. Schapira, plaintiff-respondent.
M. Dershowitz, New York City, defendant-appellant.
D. Eiseman, New York City, third-party plaintiff.
Before MURPHY, P.J., and KUPFERMAN, SULLIVAN, ASCH and ELLERIN, JJ.
Order of the Supreme Court, New York County , entered February 7, 1986, which denied defendant Frank A. Kristal Associates' motion to dismiss the within action pursuant to CPLR 3211, as barred by the Statute of Limitations, unanimously reversed, on the law, the motion is granted and the action is dismissed, with costs.
Pursuant to a contract entered into in March, 1978, defendant Frank A. Kristal Associates, Inc. agreed to sell plaintiff J.I. Hass Co., Inc. sewage pump control equipment. In the within action commenced by service of a summons and complaint on January 25, 1983, plaintiff seeks to recover damages sustained as a result of defendant's alleged breach of the aforementioned agreement in November, 1978. Defendant has moved to dismiss the action on the ground that it was not commenced within the applicable statutory period. The Uniform Commercial Code § 2-725 stipulates that actions upon contracts for the sale of goods must be brought within four years of the date upon which the cause of action arose. Plaintiff, in opposing defendant's motion to dismiss, maintained that it contracted not only for goods, but for services, and that the service element of the contract is sufficiently significant to render the statutory period set forth in the UCC inapplicable. Plaintiff urges that its action has been timely commenced within the six year limitations period prescribed in CPLR 213 for contract actions not governed by the Uniform Commercial Code.
As is clear from both the contract itself, which we note was drawn by plaintiff, and the complaint, the subject agreement was one predominantly for the sale and delivery of goods. While the lump sum contract price does cover defendant's installation supervision, and testing of the pump control equipment, these services are specifically referred to in the contract as "incidentals". They are, of course, incidental to the sale of the equipment which was obviously the...
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