SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

190 

CA 10-01282 

PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GORSKI, JJ. 

 

J.N.K. MACHINE CORPORATION, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

TBW, LTD., WOOLSCHLAGER INC. AND 

BERNARD C. WOOLSCHLAGER, DEFENDANTS-APPELLANTS. 

ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (PAUL V. WEBB, JR., OF

COUNSEL), FOR DEFENDANTS-APPELLANTS.

DAMON MOREY LLP, BUFFALO (BRIAN D. GWITT OF COUNSEL), FOR

PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Chautauqua County

(James H. Dillon, J.), entered November 19, 2009 in a breach of

contract action. The order, among other things, granted in part

plaintiff’s amended motion for partial summary judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by denying that part of the amended

motion for partial summary judgment concerning defendants’ use of the

computer inventory program and as modified the order is affirmed

without costs. 

Memorandum: Plaintiff commenced this breach of contract action

seeking damages based on defendants’ failure to pay for goods sold by

plaintiff to defendants. Plaintiff and defendants entered into a

written contract providing, inter alia, that defendants would purchase

the entire inventories of the two stores owned by plaintiff for

$650,000. Supreme Court granted in part plaintiff’s amended motion

for partial summary judgment on the first two causes of action, for

breach of contract against defendant TBW, Ltd. and defendants,

respectively. We agree with defendants at the outset that the court

erred in determining that the goods at issue were a single “commercial

unit” and thus that defendant had accepted the goods pursuant to UCC

2-606 (2). The automobile and truck parts comprising the inventories

of the two stores did not constitute “a single whole for purposes of

sale and division of which materially impairs its character or value

on the market” (UCC 2-105 [6]).

We nevertheless conclude that the court properly granted that

part of plaintiff’s amended motion for partial summary judgment on the

issue whether defendant had accepted the goods. Plaintiff established

that defendants failed to reject the goods in a timely manner, thus
-2- 190 

CA 10-01282 

they accepted the goods pursuant to UCC 2-606 (1) (b), and defendants

did not raise a triable issue of fact with respect thereto (see

generally Zuckerman v City of New York, 49 NY2d 557, 562). The

“[r]ejection of goods must be within a reasonable time after their

delivery or tender. It is ineffective unless the buyer[s] seasonably

notif[y] the seller” (UCC 2-602 [1]). “Generally, what is a timely

rejection is a question of fact for the jury . . . However, as in the

instant case, when only one inference may be drawn as to the

reasonableness of the time in which defendant[s] rejected the goods,

it becomes a question of law” (Tabor v Logan, 114 AD2d 894, 894). 

Here, the record establishes that defendants did not attempt to reject

the goods until approximately five months after taking possession of

them, and we therefore conclude as a matter of law that defendants’

attempted rejection did not occur within a reasonable time period (see

UCC 2-602 [1]; 2-606 [1] [b]; Cliffstar Corp. v Cape Cod Biolab Corp.,

37 AD3d 1073, 1074-1075).

We agree with defendants that the court erred in granting that

part of plaintiff’s amended motion for partial summary judgment on the

issue concerning defendants’ use of the computer inventory program

owned by plaintiff, and we therefore modify the order accordingly. 

There is a triable issue of fact whether the written contract was

supplemented by an oral agreement allowing defendants to use

plaintiff’s computer inventory program (see generally Zuckerman, 49

NY2d at 562). Plaintiff failed to establish that the written contract

was “a complete and exclusive statement of the terms of the agreement”

(UCC 2-202 [b]; see generally Matter of Primex Intl. Corp. v Wal-Mart

Stores, 89 NY2d 594, 599-600), and thus the written contract may be

“explained or supplemented . . . by evidence of consistent additional

terms,” including evidence of a contemporaneous oral agreement (UCC 2-

202 [b]; see generally Tambe Elec., Inc. v Home Depot U.S.A., Inc., 49

AD3d 1161). Defendants submitted evidence establishing that plaintiff

orally agreed to allow them to use the computer inventory program for

as long as was needed, and that oral agreement does not “contradict or

negate a term of the writing” (Hunt Foods & Indus. v Doliner, 26 AD2d

41, 43; see UCC 2-202).

Contrary to the further contention of defendants, the court

properly refused to consider parol evidence concerning the purchase

price or quantity of goods at issue. The contract unambiguously

provided that defendant was purchasing the entire inventory of

plaintiff’s stores for a specific price, and the deposition testimony

and affidavits relied upon by defendants in opposition to the amended

motion do “not ‘explain[ ]’ or ‘supplement[ ]’ the unambiguous

contract [terms] but, rather, they impermissibly contradicted [those

terms]” (Cliffstar Corp., 37 AD3d at 1074, quoting UCC 2-202).

Entered: February 18, 2011 Patricia L. Morgan

Clerk of the Court