June 6, 2013
Lion Copolymer, LLC, Plaintiff-Respondent,
Kolmar Americas, Inc., Defendant-Appellant, SGS Nederland B.., et al., Defendants.
Lennon, Murphy, Caulfield & Phillips, LLC, New York (Patrick F. Lennon of counsel), for appellant.
Duane Morris LLP, New York (James W. Carbin of counsel), for respondent.
Gonzalez, P.J., Sweeny, Richter, Clark, JJ.
Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered on or about January 10, 2013, which, to the extent appealed from, denied defendant Kolmar Americas, Inc.'s motion to dismiss as against it the causes of action for breach of contract, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, and negligence, unanimously affirmed, with costs.
The complaint alleges that defendant allowed the quality of the contracted-for petroleum product to degrade, and failed to deliver a product conforming to the parties' contract specifications. Even if plaintiff assumed the risk of loss during transportation, that would not be fatal to its claims, since plaintiff alleges that the loss occurred before loading; it contests the findings of inspection reports that a conforming product was loaded for delivery.
We have considered defendant's remaining arguments, including that plaintiff failed to give it proper notice of its claim regarding the quality of the product, and find them unavailing.