Opinion
August 16, 1993
Appeal from the Supreme Court, Nassau County (Saladino, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff seeks to recover payment for certain aerospace fasteners which it sold to the defendant. The defendant asserts, among other defenses, that once it learned of certain fraudulent conduct on the part of the plaintiff and Bruce J. Rice, a principal officer of the plaintiff company, the defendant sought assurances that the fasteners in its possession were proper, and that the contract was voided when the plaintiff failed to give the defendant adequate assurances.
We agree with the Supreme Court that issues of fact exist regarding whether the defendant acted reasonably, and whether the plaintiff provided sufficient assurances (see, UCC 2-609). Issues of fact also exist as to whether the defendant timely rejected the goods (see, Greacen v Poehlman, 191 N.Y. 493, 498; Tabor v Logan, 114 A.D.2d 894). That the defendant has not tendered the fasteners back to the plaintiff does not require judgment as a matter of law against the defendant, because the defendant has essentially alleged that the fasteners here are counterfeit. "When the goods are counterfeit, the buyer is not required to return them to the seller as a condition precedent to the recovery of damages for breach of warranty, as this would allow them to return to the stream of commerce" (Anderson, Uniform Commercial Code § 2-608:32, at 196 [3d ed], citing United States v Franklin Steel Prods., 482 F.2d 400, cert denied 415 U.S. 918).
We have examined the plaintiff's remaining contentions and find them to be without merit. Rosenblatt, J.P., Miller, Santucci and Joy, JJ., concur.