Richard A. Rosenblatt & Company, Inc. v. Davidge Data Systems Corporation

Decision Date13 June 2002
Citation295 A.D.2d 168,743 N.Y.S.2d 471
CourtNew York Supreme Court — Appellate Division
PartiesRICHARD A. ROSENBLATT & COMPANY, INC., Appellant,<BR>v.<BR>DAVIDGE DATA SYSTEMS CORPORATION et al., Respondents.

Concur — Williams, P.J., Tom, Saxe, Friedman and Marlow, JJ.

Since the parties' contracts for installation of a computerized securities trading system were predominantly agreements for plaintiff's purchase of computer hardware and user rights to extant, off-the-shelf software, they were essentially contracts for the sale of goods and thus subject to UCC 2-725's four-year statute of limitations (see, Triangle Underwriters, Inc. v Honeywell, Inc., 604 F2d 737). While defendants, pursuant to the subject contracts, agreed to perform maintenance services for a monthly fee going forward, it is clear that these services were viewed by plaintiff as incidental to the contracted for purchase of computer hardware and software. As this Court has noted, "contracts for the sale of sophisticated equipment frequently provide for some initial supervision, testing and instruction by the manufacturer" (Hass Co. v Kristal Assoc., 127 AD2d 541, 542, lv denied 69 NY2d 611). Inasmuch as the UCC four-year statutory period is applicable, plaintiff's claims for breach of contract and warranty are time-barred, the goods in question having been delivered more than four years prior to commencement of this action (see, UCC 2-725 [2]). We note in this last connection that the subject contracts cannot be construed to provide a continuing warranty of future performance so as to delay accrual of plaintiff's breach of warranty claims beyond the date of delivery (see, id.).

The complaint, however, is not time-barred insofar as it alleges claims for breach of the above-described service component of the parties' agreements. The contractual obligation undertaken by defendants to provide service, maintenance and repair of the purchased system for a monthly fee is separate from any warranty and continued so long as plaintiff continued to pay the agreed on monthly maintenance fee. While the service component of the parties' agreements is, as noted, properly considered an incident to contracts for the sale of goods and claims premised thereon are subject to the same UCC statute of limitations applicable to other claims under the contracts, a breach of the services portion of the subject agreements, i.e., defendant's failure to service the system in accordance with its continuing obligation under the service provision, is alleged by plai...

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  • Hema Kolainu–Hear Our Voices v. Providersoft, LLC
    • United States
    • U.S. District Court — Eastern District of New York
    • May 21, 2010
    ...or thought and therefore qualifies as a ‘good’ under Article 2 of the UCC.”); cf. Richard A. Rosenblatt & Co., Inc. v. Davidge Data Sys. Corp., 295 A.D.2d 168, 168, 743 N.Y.S.2d 471, 472 (1st Dep't 2002) (finding contract for computer hardware and software user rights to be a contract for t......
  • Avazpour Networking Servs., Inc. v. Falconstor Software, Inc.
    • United States
    • U.S. District Court — Eastern District of New York
    • April 3, 2013
    ...malpractice by computer consultants.” Nielsen, 2002 WL 31175223 *7, quoting, Richard A. Rosenblatt & Co. v. Davidge Data Sys. Corp., 295 A.D.2d 168, 169, 743 N.Y.S.2d 471, 472 (1st Dept.2002); see also Columbus McKinnon Corp. v. China Semiconductor Co., 867 F.Supp. 1173, 1182 (W.D.N.Y.1994)......
  • KSW Mech. Servs. v. Johnson Controls, Inc.
    • United States
    • U.S. District Court — Eastern District of New York
    • January 6, 2014
    ...maintenance, testing, instruction or supervision are still subject to the UCC. See Richard A. Rosenblatt & Co., Inc. v. Davidge Data Sys. Corp., 295 A.D.2d 168, 743 N.Y.S.2d 471, 472 (1st Dep't 2002) (holding that a contract for the installation and maintenance of computer hardware and soft......
  • Donald Dean & Sons, Inc. v. Xonitek Systems Corp.
    • United States
    • U.S. District Court — Northern District of New York
    • August 31, 2009
    ...malpractice by computer consultants,'" Nielsen, 2002 WL 31175223, at *8 (quoting Richard A. Rosenblatt & Co. v. Davidge Data Sys. Corp., 295 A.D.2d 168, 743 N.Y.S.2d 471, 472 (1st Dep't 2002) and citing Columbus McKinnon Corp. v. China Semiconductor Co., 867 F.Supp. 1173, 1182 (W.D.N.Y.1994......
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