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. ZarOpinion
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.