State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 30, 2014 517895 

________________________________

FERRATELLA BROTHERS, LLC,

AppellantRespondent,

v MEMORANDUM AND ORDER

JOSEPH SACCO,

RespondentAppellant.

________________________________

Calendar Date: September 11, 2014

Before: Peters, P.J., Lahtinen, Stein, Garry and Devine, JJ.

__________

Samuel Castellino, Big Flats, for appellant-respondent.

Pope & Schrader, LLP, Binghamton (Kurt Schrader of

counsel), for respondent-appellant.

__________

Lahtinen, J.

Cross appeals from an order of the Supreme Court (O'Shea,

J.), entered January 4, 2013 in Chemung County, upon a decision

of the court partially in favor of defendant.

In August 2006, plaintiff agreed to purchase a point of

sale system from defendant for its restaurant.1 The system

1 The system was intended to, among other things, assist in

tracking restaurant orders, maintaining inventory, monitoring

catering orders, processing credit card payments, including

supplying separate information regarding tips, and maintaining

information about employees ranging from payroll to scheduling.
-2- 517895 

included computer hardware and software as well as setup. 

Defendant was unable to get the system operating to plaintiff's

full satisfaction and, in January 2008, the parties executed a

written agreement providing that defendant had until March 15,

2008 to have the system operating to plaintiff's satisfaction. 

If defendant did so, plaintiff would pay the balance of $3,000 –

the amount agreed to be due on the original contract – and if

defendant failed to do so, plaintiff could return all equipment

and defendant would reimburse plaintiff all payments previously

made to defendant in the amount of $12,000. The agreement's

deadline was thereafter extended to April 15, 2008. 

In October 2011, plaintiff commenced this action alleging

breach of the January 2008 agreement and seeking the return of

all monies it had paid defendant. Defendant counterclaimed for

the unpaid balance on the equipment, which was still being used

by plaintiff. After a nonjury trial, Supreme Court dismissed

both plaintiff's action and defendant's counterclaim. Both

parties appeal.

We affirm. The parties' initial transaction, involving

primarily a sale of goods (computer software and hardware), was

governed by UCC article 2 (see Sears, Roebuck & Co. v Galloway,

195 AD2d 825, 826 [1993]). A purchaser's remedies when seeking

full reimbursement for nonconforming goods include, among other

things, revoking acceptance within a reasonable time of delivery

(see Hooper Handling v Jonmark Corp., 267 AD2d 1075, 1075-1076

[1999]; Cliffstar Corp. v Elmar Indus., 254 AD2d 723, 724

[1998]); however, the failure to promptly revoke acceptance does

not necessarily foreclose other relief (see B. Milligan Contr. v

Mancini Assoc., 174 AD2d 136, 139 [1992]; V. Zappala & Co. v

Pyramid Co. of Glens Falls, 81 AD2d 983, 984 [1981], lv denied 55

NY2d 603 [1981]). The parties' January 2008 agreement

established a specific date not only for defendant's complete

performance, but also for plaintiff's right of a full refund upon

return of the equipment.

Proof at trial established that plaintiff kept and used the

equipment for 31⁄2 years beyond the specifically agreed to date

before commencing this litigation and, in fact, was still using

the equipment at the time of trial. Plaintiff's delay was
-3- 517895 

unreasonable under the UCC as well as the specific terms of the

January 2008 agreement, and Supreme Court did not err in

dismissing plaintiff's action seeking a full refund. Further,

Supreme Court's dismissal of defendant's counterclaim is

supported by ample evidence that defendant failed to get the

system operating in complete compliance with the contract, and

that the amount that defendant had already received constituted

reasonable compensation for the system that was delivered.

Peters, P.J., Stein, Garry and Devine, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court