Sears, Roebuck & Co. v. Galloway

• Decision Date: 22 July 1993
• Court: New York Supreme Court — Appellate Division
• Parties: SEARS, ROEBUCK & COMPANY, Respondent, v. Nancy E. GALLOWAY, Appellant.

Page 773

600 N.Y.S.2d 773

195 A.D.2d 825

SEARS, ROEBUCK & COMPANY, Respondent, v. Nancy E. GALLOWAY, Appellant.

Supreme Court, Appellate Division Third Department.

July 22, 1993.

Nancy E. Galloway, in pro. per.

Solomon & Solomon, P.C. (Timothy N. Maikoff, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and YESAWICH, LEVINE, CREW and CASEY, JJ.

CASEY, Justice.

Appeals (1) from an order of the Supreme Court (Torraca, J.), entered August 10, 1990 in Ulster County, which, inter alia, granted plaintiff's motion for summary judgment, and (2) from an order of said court, entered October 24, 1991 in Ulster County, which, inter alia, denied defendant's motion for renewal.

In December 1985 plaintiff and defendant signed a "Retail Installment Contract and Security Agreement", whereby plaintiff would sell and install a boiler at premises owned by defendant for $5,375.92. The estimate and proposal of the work submitted by plaintiff and accepted by defendant outlined the services to be performed under the contract, and specifically stated that defendant, as customer, was to be responsible for the condition of the main steam and water lines, radiators and radiator air vent.

After the boiler was installed, defendant complained that the boiler was not performing satisfactorily. Plaintiff had the boiler serviced but could find nothing wrong with the boiler. When defendant continued to complain, plaintiff offered to reduce the sales price by $1,000. Plaintiff also offered to remove the boiler and credit defendant's account. Defendant refused these and other offers and demanded a new boiler, even though she had paid only $162 on the purchase price. Thus, without any substantial payment, defendant has had continuous use of the boiler since its installation in January 1986.

Plaintiff commenced this action in July 1989 for payment of the balance due or return of the boiler, and after issue was joined moved pursuant to CPLR 3126 for an order awarding it penalties based on defendant's refusal to disclose experts as plaintiff had requested. Supreme Court ordered defendant to make a formal verified response to plaintiff's demand for experts, and when defendant failed to reveal her experts, plaintiff moved for summary judgment, claiming that due to defendant's failure to produce any expert to demonstrate that it was the boiler that was responsible for the insufficiency of heat in the building, no triable issue of fact existed. Plaintiff further argued that defendant's failure to reject or return the boiler constituted an acceptance. Defendant replied and cross-moved to amend her answer to add a counterclaim, asserting negligence on plaintiff's part in installing the boiler. Supreme Court granted plaintiff's motion for summary judgment and denied defendant's cross motion. Defendant appeals.

Defendant subsequently moved to renew her cross motion on the ground of new information. Her motion was again denied and she appeals. We believe the denial of this motion for renewal was appropriate, because defendant made no showing that the new information was not available to her at the time of the original motion (see, Lansing Research Corp. v. Sybron Corp., 142 A.D.2d 816, 819, 530 N.Y.S.2d 698).

Although the parties' contract involved the sale of both goods (the boiler and related equipment) and services (installation), the agreement was one predominantly for the sale and delivery of goods and, therefore, the parties' rights and obligations are governed by UCC article 2 (compare Hass Co. v. Kristal Assocs., 127 A.D.2d 541, 512 N.Y.S.2d 104, lv. denied 69 N.Y.2d 611, 517 N.Y.S.2d 1025, 511 N.E.2d 84, with Schenectady Steel Co. v. Trimpoli Gen. Constr. Co., 43 A.D.2d 234, 236-237, 350 N.Y.S.2d 920, affd 34 N.Y.2d 939, 359 N.Y.S.2d 560, 316 N.E.2d 875). Acceptance of goods can occur in a number of ways (see, Milligan Contr. v. Mancini Assocs., 174 A.D.2d 136, 138, 578 N.Y.S.2d 931), one of which is when the buyer fails to make an effective rejection after having had a reasonable opportunity to inspect the goods (UCC 2-606[1][b]. Defendant contends that she rejected the boiler, but "mere complaint about the goods does not constitute a clear and unequivocal act of rejection" (Maggio Importato v. Cimitron Inc., 189 A.D.2d 654, 592 N.Y.S.2d 325). In any event, acceptance also occurs when the buyer acts inconsistently with the seller's ownership (UCC 2-606[1][c], and the undisputed evidence of defendant's continued retention and use of the boiler for a substantial period of time, covering several heating seasons, despite plaintiff's offers to remove the boiler and credit her account, constitutes an acceptance (see, Zappala & Co. v. Pyramid Co. of Glens Falls, 81 A.D.2d 983, 439 N.Y.S.2d 765, lv. denied 55 N.Y.2d 603, 447 N.Y.S.2d 1025, 431 N.E.2d 643). Defendant also contends that she revoked her acceptance, but there is no evidence of the unequivocal timely notice required by UCC 2-608(2).

Although a buyer must pay for any goods accepted (UCC 2-607[1] and is precluded from rejecting the accepted goods (UCC 2-607[2], acceptance does not in and of itself impair any other remedy provided by UCC article 2 for nonconformity (UCC 2-607[2]. Thus, "acceptance leaves unimpaired the buyer's right to be made whole, and that right can be exercised by the buyer not only by...