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Against Gravity Apparel v. Quarterdeck Corp.

Appellate Division of the Supreme Court of New York, First Department
Dec 7, 1999
267 A.D.2d 44 (N.Y. App. Div. 1999)

Summary

holding that, where the defendant allegedly knew that its product was not Y2K compliant and failed to disclose this fact to consumers, the defendant did not act deceptively because the product outlived its ninety-day warranty

Summary of this case from In re Porsche Cars North America, Inc. Plastic Coolant Tubes Prods. Liab. Litig.

Opinion

December 7, 1999

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered April 8, 1999, which, in an action for breach of warranty and deceptive trade practices arising out of defendant's sale of computer software to plaintiff that was not Y2K compliant, granted defendant's motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with costs.

Jeffrey A. Klafter, for plaintiff-appellant.

Claude M. Stern, for defendant-respondent.

SULLIVAN, J.P., ROSENBERGER, TOM, MAZZARELLI, WALLACH, JJ.


The causes of actions for breach of warranty and violation of theMagnuson-Moss Warranty Act ( 15 U.S.C. § 2301 et. seq) were properly dismissed in view of defendant's disclaimer of all implied warranties, and plaintiff's use of the software without any problems during the 90-day warranty period (see, Abraham v. Volkswagen of Am., 795 F.2d 238, 241, 249-250; Feinstein v. Firestone Tire Rubber Co., 535 F. Supp. 595, 603). Even if the warranty did extend beyond January 1, 2000, some two and a half years after the purchase, the errors and interruptions alleged by plaintiff would not be covered since defendant expressly "[did] not warrant that the operation of the Software will be uninterrupted or error free". This last disclaimer, together with the 90-day warranty period, also undermine any claim under General Business Law § 349 of a materially misleading or deceptive omission implying Y2K compliance (see, S.Q.K.F.C., Inc. v. Bell Atl. Tricon Leasing Corp., 84 F.3d 629, 636-637). Nor does UCC 2-719(2) avail plaintiff, since, the defect not having manifested itself during the warranty period, the warranty was never triggered, and it therefore cannot be said that the warranty failed of its essential purpose or that plaintiff was deprived of the benefit of his bargain (see, Siemens Credit Corp. v. Marvik Colour Inc, 859 F. Supp. 686, 694). Also without merit is plaintiff's claim, based on UCC 1-204, that the software's Y2K noncompliance is a latent defect that could not be discovered during an unreasonably short 90-day warranty period (see, Landsman Packing Co. v. Continental Can Co., 864 F.2d 721, 729).

We have considered plaintiff's other arguments and find them unpersuasive.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Against Gravity Apparel v. Quarterdeck Corp.

Appellate Division of the Supreme Court of New York, First Department
Dec 7, 1999
267 A.D.2d 44 (N.Y. App. Div. 1999)

holding that, where the defendant allegedly knew that its product was not Y2K compliant and failed to disclose this fact to consumers, the defendant did not act deceptively because the product outlived its ninety-day warranty

Summary of this case from In re Porsche Cars North America, Inc. Plastic Coolant Tubes Prods. Liab. Litig.

In Against Gravity, a plaintiff accused a software maker of violating the NYGBL when the software company allegedly concealed from plaintiff that its software was not "Y2K complaint."

Summary of this case from In re Gen. Motors Air Conditioning Mktg.

In Against Gravity Apparel, Inc. v. Quarterdeck Corp., 699 N.Y.S.2d 368, 369 (App.Div. 1999), the main case that Honda relies on in seeking to dismiss the claims under the New York statute, the plaintiff brought suit arising out of its purchase of computer software that was not Y2K compliant.

Summary of this case from In re Onstar Contract Litigation
Case details for

Against Gravity Apparel v. Quarterdeck Corp.

Case Details

Full title:AGAINST GRAVITY APPAREL, INC., etc., Plaintiff-Appellant, v. QUARTERDECK…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 7, 1999

Citations

267 A.D.2d 44 (N.Y. App. Div. 1999)
699 N.Y.S.2d 368

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