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G. & D. POULTRY FARMS v. LONG ISLAND BUTTER & EGG CO. (11/03/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


November 3, 1969

G. & D. POULTRY FARMS, INC., APPELLANT,
v.
LONG ISLAND BUTTER & EGG CO., INC., RESPONDENT

In an action to recover a balance owing for goods sold and delivered, plaintiff appeals from an order of the Supreme Court, Nassau County, dated March 14, 1969, which denied its motion for summary judgment.

Christ, Acting P. J., Rabin, Hopkins, Benjamin and Martuscello, JJ., concur.

In our opinion, defendant waived its right to assert a counterclaim with respect to alleged defects in plaintiff's merchandise. Not only was the delay in asserting said claim unreasonable as a matter of law but, despite knowledge of alleged defects, defendant continued to order additional goods and pay for same without once indicating to plaintiff that it was dissatisfied with the quality of the merchandise or wished to raise a claim in setoff (Bangor Clothing Co. v. Superior Sportswear Corp., 22 A.D.2d 864, affd. 16 N.Y.2d 1018; Uniform Commercial Code, ยง 2-607, subd. [3], par. [a]). There being no bona fide triable issue presented as to the cause of action set forth in the complaint, plaintiff is entitled to summary judgment in full.

Disposition

Order reversed, on the law, and plaintiff's motion for summary judgment in the full amount demanded in the complaint, and dismissing defendant's counterclaims, granted, with $20 costs and disbursements.

19691103

© 1998 VersusLaw Inc.



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