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Maggio Importato, Inc. v. Cimitron Inc.

Appellate Division of the Supreme Court of New York, First Department
Jan 14, 1993
189 A.D.2d 654 (N.Y. App. Div. 1993)

Summary

holding defendant's acceptance of non-conforming goods entitled plaintiff to recover contract price, where there was no "clear and unequivocal act of rejection" by the defendant and no indication that the defendant asserted a counterclaim or submitted evidence in support thereof

Summary of this case from SunQuest Enter., Inc. v. Zar

Opinion

January 14, 1993

Appeal from the Supreme Court, New York County (Phyllis Gangel-Jacob, J.).


We agree with the IAS Court that no questions of fact exist involving defendant's acceptance of the goods shipped by plaintiff. Defendant's mere complaint about the goods does not constitute a clear and unequivocal act of rejection. Moreover, defendant's use of the goods and failure to return same constituted an acceptance of the goods (UCC 2-606; Computerized Radiological Servs. v. Syntex Corp., 786 F.2d 72). Defendant's acceptance of the goods, even if the goods failed to conform to the contract, entitles plaintiff to recover the contract price (Sunny Side Up v. Agway, Inc., 40 A.D.2d 899).

Concur — Sullivan, J.P., Milonas, Ellerin and Wallach, JJ.


Summaries of

Maggio Importato, Inc. v. Cimitron Inc.

Appellate Division of the Supreme Court of New York, First Department
Jan 14, 1993
189 A.D.2d 654 (N.Y. App. Div. 1993)

holding defendant's acceptance of non-conforming goods entitled plaintiff to recover contract price, where there was no "clear and unequivocal act of rejection" by the defendant and no indication that the defendant asserted a counterclaim or submitted evidence in support thereof

Summary of this case from SunQuest Enter., Inc. v. Zar
Case details for

Maggio Importato, Inc. v. Cimitron Inc.

Case Details

Full title:MAGGIO IMPORTATO, INC., Respondent, v. CIMITRON INC., Doing Business as…

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

Date published: Jan 14, 1993

Citations

189 A.D.2d 654 (N.Y. App. Div. 1993)
592 N.Y.S.2d 325

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