Kates, Ltd. v. Benay-Albee

9 Citing cases

  1. Petti v. Deridder

    78 Misc. 3d 690 (N.Y. Cnty. Ct. 2023)   Cited 1 times

    Here, there is nothing in the communications between the parties on Facebook Messenger or in the trial testimony that would support a finding that plaintiff relied upon defendant's skill and judgment to select the washing machine. Therefore, plaintiff is not entitled to recovery under the implied warranty of fitness for a particular purpose ( McCarthy v. Checchin, 18 Misc. 3d 1134, 2004 WL 5536487 [Sup. Ct., Clinton County 2004] ; Kates Millinery, Ltd. v. Benay-Albee Corp , 114 Misc. 2d 230, 450 N.Y.S.2d 975 [Civ. Ct., Queens County 1982], cf.Simmons v. Washing Equipment Technologies , 51 A.D.3d 1390, 857 N.Y.S.2d 412 [4th Dept. 2008] ). UCC § 2-313- Express Warranty

  2. Petti v. Deridder

    2023 N.Y. Slip Op. 23024 (N.Y. Just. Ct. 2023)

    Here, there is nothing in the communications between the parties on Facebook Messenger or in the trial testimony that would support a finding that plaintiff relied upon defendant's skill and judgment to select the washing machine. Therefore, plaintiff is not entitled to recovery under the implied warranty of fitness for a particular purpose (McCarthy v Checchin, 18 Misc.3d 1134 [Sup Ct, Clinton County 2004]; Kates Millinery, Ltd. v Benay-Albee Corp, 114 Misc.2d 230 [Civ Ct, Queens County 1982], cf. Simmons v Washing Equipment Technologies, 51 A.D.3d 1390 [4th Dept 2008]). UCC § 2-313 - Express Warranty

  3. Perrin v. Key Eng'g Sols.

    2019 N.Y. Slip Op. 33308 (N.Y. Sup. Ct. 2019)

    UCC 2-314, Comment 3, however, provides that "[a] person making an isolated sale of goods is not a 'merchant' within the meaning of the full scope of this section and, thus, no warranty of merchantability would apply." Thus, it has been held that a casual seller cannot be held liable for breach of the implied warranty of merchantability (see Rogers v HSN Direct Joint Venture, 1999 WL 595533, *3, 1999 US Dist LEXIS 12111, *8-9 [SD NY Aug. 6, 1999, No. 97-Civ-7710 (LLS)], Colopy v Pitman Mfg. Co., 206 AD2d 864, 864 [4th Dept 1994]; McCarthy, 2004 NY Slip Op 51918[U], *4; Kates Millinery v Benay-Albee Corp., 114 Misc 2d 230, 231-232 [Civ Ct, Queens County 1982], affd 120 Misc 2d 429 [App Term 1983]). Therefore, since Key Engineering is a casual seller, summary judgment dismissing plaintiffs' claim for breach of the implied warranty of merchantability must be granted (see CPLR 3212 [b]).

  4. American Plastic Equipment, Inc. v. CBS Inc.

    886 F.2d 521 (2d Cir. 1989)   Cited 9 times
    Denying motion for summary judgment, holding that the fact that one party never supplied the other with a definitive list of goods that were included in the contract term "Schedule A" was not conclusive evidence that the parties did not know which goods were the subject of the agreement, and determining that a reasonable jury could find the existence of a contract despite the absence of a document listing the goods

    Olson v. U.S. Industries, Inc., 649 F.Supp. 1511 (D.Kan. 1986); Bevard v. Ajax Manufacturing Co., 473 F.Supp. 35 (E.D.Mich. 1979); Kates Millinery Ltd. v. Benay-Albee Corp., 114 Misc.2d 230, 450 N.Y.S.2d 975 (Civ.Ct. Queens Cty. 1982), aff'd, 120 Misc.2d 429, 467 N.Y.S.2d 348 (App. Term 2d Dept. 1983). On the other hand, in Section 2-314 on the warranty of merchantability, such warranty is implied only "if the seller is a merchant with respect to goods of that kind."

  5. Anderson v. Bungee Intern. Mfg. Corp.

    44 F. Supp. 2d 534 (S.D.N.Y. 1999)   Cited 19 times
    Holding that statements that product was of "Premium Quality" and "Made in the USA" were mere puffery

    The statements in this case are not descriptions of particular characteristics of the goods and are therefore unlike the statements at issue in the cases cited by Anderson. See Kates Millinery, Ltd. v. Benay-Albee Corp., 114 Misc.2d 230, 450 N.Y.S.2d 975 (Civ.Ct. 1982) (holding that seller breached express warranty that pressing machine was "one year old" and "in perfect condition," where the court found that machine was at least five years old); Bernstein v. Sherman, 130 Misc.2d 741, 497 N.Y.S.2d 298 (Justice Ct. 1986) (representation by mechanic, in response to a specific question by plaintiff buyer, that frame of used automobile was in "good condition" constituted an express warranty); Spiegel v. Saks 34th St., 43 Misc.2d 1065, 252 N.Y.S.2d 852 (Sup.Ct. App.Term 1964) (statements in advertisement and on package that beauty cream was "safe," "clinically proven and absolutely safe" and "completely safe," and that cream "safely fades away" age spots, constituted an express warranty of safety). CONCLUSION

  6. Wullschleger Co., Inc. v. Jenny Fashions

    618 F. Supp. 373 (S.D.N.Y. 1985)   Cited 4 times

    Nassau Suffolk White Trucks, Inc. v. Twin County Transit Mix Corp., 62 A.D.2d 982, 403 N.Y.S.2d 322 (2d Dept. 1978). N.Y. UCC § 2-313; Kates Millinery, Ltd. v. Benay-Albee Corp., 144 Misc.2d 230, 450 N.Y.S.2d 975 (Civ.Ct. Queens Co. 1982), aff'd, 120 Misc.2d 429, 467 N.Y.S.2d 348 (N.Y.App.Term 1983).Holdridge v. Heyer-Schulte Corp. of Santa Barbara, 440 F. Supp. 1088 (N.D.N.Y. 1977)

  7. In re Jackson Television, Ltd.

    121 B.R. 790 (Bankr. E.D. Tenn. 1990)   Cited 3 times

    Official Comment 3 to Tennessee Code Annotated § 47-2-314 (West 1979) which enacts § 2-314 of the Uniform Commercial Code states, "A person making an isolated sale of goods is not a `merchant' within the meaning of the full scope of this section and, thus, no warranty of merchantability would apply." See, e.g., Fred J. Moore, Inc. v. Schinmann, 40 Wash.App. 705, 700 P.2d 754, 757 (1985) (a farmer of mint for mint oil who made a one-time sale of mint roots to another mint farmer dealt in mint oil, not mint roots, and was not a merchant of mint roots based on one isolated sale); Kates Millinery v. Benay-Albee Corp., 114 Misc.2d 230, 450 N.Y.S.2d 975, 976-77 (N.Y.Civ.Ct. 1982) (a manufacturer of novelty headwear who sold a pressing machine used in manufacturing headwear to another manufacturer of novelty headwear was not "a merchant with respect to goods of that kind," and so no implied warranty of merchantability arose); McGregor v. Dimou, 101 Misc.2d 756, 422 N.Y.S.2d 806, 809 (N.Y.Civ.Ct. 1979) (a body and fender specialist who sold a used car was not a merchant of used cars even though he had sold a few other used cars because a person making an isolated sale of goods is not a merchant under the Code); Bevard v. Ajax Mfg. Co., 473 F.Supp. 35, 37-38 (E.D.Mich. 1979) (Ajax Manufacturing Company who sold a used press through a used equipment dealer was not a merchant but only an occasional seller of used presses).

  8. Colopy v. Pitman Manufacturing Company, Inc.

    206 A.D.2d 864 (N.Y. App. Div. 1994)   Cited 8 times

    In support of its motion, defendant submitted proof that it had sold only eight similar pieces of equipment in the 25 years preceding the accident. That proof is sufficient to establish that defendant was only a casual or occasional seller of such equipment and that it may not be held liable under principles of strict products liability (see, Stiles v. Batavia Atomic Horseshoes, 81 N.Y.2d 950, rearg denied 81 N.Y.2d 1068; Sukljian v. Ross Son Co., 69 N.Y.2d 89; Goldman v. Packaging Indus., 144 A.D.2d 533, 536). Nor can defendant be considered "a merchant with respect to goods of that kind" within the meaning of UCC 2-314 (1) (see, Kates Millinery v. Benay-Albee Corp., 114 Misc.2d 230, affd 120 Misc.2d 429; Prosser and Keeton, Torts § 100, at 705 [5th ed]). Thus, we grant in part defendant's motion for summary judgment by dismissing the first cause of action alleging strict products liability and that part of the third cause of action alleging breach of implied warranty of merchantability.

  9. Carter v. Gilbert

    2008 N.Y. Slip Op. 50010 (N.Y. Misc. 2008)

    Generalized statements and exaggerated claims made by a seller about a product, which a reasonable consumer would not rely upon as a statement of fact, do not create an express warranty. Id. However, where the seller makes representations of fact about specific characteristics of the product, which were relied upon by the buyer as part of the basis of the bargain, an express warranty is created. ( Kates Millinery, LTD., v. Benay-Albee Corp., 114 Misc 2d 230 [NY Civ.Ct. 1982], aff'd 120 Misc 2d 429 [App.Term 2d and 11th Districts 1983]). Here, the defendant testified that the engine was rebuilt and that it was in good working condition.