Minikes v. Admiral Corp.

• Decision Date: 14 January 1966
• Citation: Minikes v. Admiral Corp., 48 Misc.2d 1012, 266 N.Y.S.2d 461 (N.Y. Dist. Ct. 1966)
• Parties: , 3 UCC Rep.Serv. 169 Jesse MINIKES, Plaintiff, v. ADMIRAL CORPORATION and Newmark & Lewis Syosset Corp., Defendants.
• Court: New York District Court

Page 461

266 N.Y.S.2d 461

48 Misc.2d 1012, 3 UCC Rep.Serv. 169

Jesse MINIKES, Plaintiff, v. ADMIRAL CORPORATION and Newmark & Lewis Syosset Corp., Defendants.

District Court of Nassau County, First District, Mineola.

Jan. 14, 1966.

Milton Brandon, New York City, for plaintiff.

Walter B. Kempner, Hempstead, for defendant Newmark & Lewis Syosset Corp.

JOHN S. LOCKMAN, Judge.

Defendant Newmark & Lewis Syosset Corp., as seller, moves for summary judgment dismissing a purchaser's complaint which alleges a breach of contract because the merchandise, a refrigerator, did not comply with the implied warranties of merchantability and fitness set forth in Sections 2-314 and 2-315 of the Uniform Commercial Code (U.C.C.).

The defendant contends that Section 2-316 U.C.C. permits a disclaimer of implied warranties and exhibited the 'purchase order' to show that it had disclaimed. Although the prelude to the disclaimer stating: 'All orders accepted are subject to the following:' was in larger type, the disclaimer was in five point type and smaller than the type on the rest of the 'purchase order'.

The burden of preparing an effective disclaimer is heavy. It is one of the hazards of business. Before a merchant can disqualify for the implied warranties the public has become accustomed to, it must show that the customer was clearly placed on notice. (Marino v. Maytag Atlantic Co., Mun.Ct., 141 N.Y.S.2d 432.) A reading of Section 2-316 relied upon by the defendant indicates that any written disclaimer must be conspicuous. Conspicuous is defined in Section 1-201 U.C.C.

'General Definitions * * * (10) 'Conspicuous': A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: Non-Negotiable Bill of Lading) is...