On June 5, 1998, plaintiff's attorney received a telephone call from Court. The Court requested that the parties set forth the law on the issue of whether or not the plaintiff, AURIGA, was doing business in New York as an unauthorized foreign corporation in violation of Business Corporation Law (BCL) § 1312. [FN7]
FN7 BCL §1312(a) states:
A foreign corporation doing business in this state without authority shall not maintain any action or special proceeding in this state unless and until such corporation has been authorized to do business in this state and it has paid to the state all fees and taxes imposed under the tax law or any related statute, as defined in section eighteen hundred of such law, as well as penalties and interest charges related thereto, accrued against the corporation. This prohibition shall apply to any successor in interest of such foreign corporation
Plaintiff's attorneys faxed a letter to the Court on June 5, 1998, as follows:
"The issue, if raised, that the plaintiff is an unauthorized foreign corporation is not tenable. No evidence has been submitted to show that the plaintiff conducts any activity in the State of New York. The order for the cassette shells (Exhibit "1" of the summary judgment affidavit) were faxed to plaintiff's independent sales representative in Creston, Ohio. Except for one shipment that the defendant picked up in Indianapolis, Indiana, six shipments of cassette shells to defendant were made by a common carrier from Indianapolis, Indiana (see Paragraphs four of the moving affidavit and Exhibits "4" through "9" annexed thereto). No evidence has been submitted to show that the plaintiff maintains any offices or warehouses in New York; has any New York bank accounts or that it sends any officers or employ-ees regularly into the State to perform or oversee the sale of goods. There is a presumption that a foreign corporation conducts its business in the State of its organization (Ascher Corp. v. Horvath, 35 Misc. 2d 375, William L. Bonnell Co. v. Katz, 23 Misc. 2d 1028).
The burden of proof is on defendant to show that the plaintiff is doing business in the State of New York (Dixie Dinettes, Inc. v. Schaller's Furniture, 71 Misc. 2d 102). The defendant must show the plaintiff is conducting continuous activity within the State of New York. If a plaintiff does business in the State of its incorporation and only ships goods into New York State by common carrier, then the plaintiff is engaged in interstate commerce and need not qualify to do business in the State of New York (Von Arx, AG. v. Breitenstein, 52 A.D.2d 1049, aff'd, 41 N.Y.2d 958, 960). Solicitation of sales through an individual sales agent does not alter the result (See Koepke v. Bilnor Corp., 55 Misc. 2d 928, 931, 932).
The defendant's attorney faxed a letter to the Court on June 8, 1998:
I am writing this letter in response to the Court's inquiry concerning Auriga Plasticos, S.A. De C.V.'s (hereinafter "Auriga") capacity as a foreign corporation unauthorized to do business in New York to be granted summary judgment in this action against Allison Video, Ltd. (hereinafter "Allison"). Allison believes, that in light of the issue raised by Auriga's summary judgment papers and this Court, Auriga's motion for summary judgment should be denied, or, at minimum, not considered until either discovery has been completed or Auriga provides some evidentiary proof that they have not regularly conducted business activities within New York.
The Business Corporation Law provides that foreign corporations doing business or conducting activities within New York without the authority to do so may not maintain any action or special proceeding in the state courts. Bus. Corp. Law § 1312(a), see also United Arab Shipping Co. v. Al Hashim, 176 A.D.2d 569, 574 N.Y.S.2d 743 (1st Dep't 1991); Interline Furniture, Inc. v. Hodor Industries Corp., 140 A.D.2d 307, 527 N.Y.S.2d 544 (2d Dep't. 1988); 15 N.Y.Jur.2d, Business Relationships, § 1074. Since this statute cannot be used to deny access to the state courts to those foreign corporations whose contacts with the state are solely incidental to their engagement in interstate or international commerce (see Alicento, S.A. v. Woolverton, 129 A.D.2d 601, 514 N.Y.S.2d 96 (2d Dep't 1987); Von Arx, A.G. v. Breitenstein, 52 A.D.2d 1049, 384 N.Y.S.2d 895 (4th Dep't 1976), aff'd, 41 N.Y.2d 958, 394 N.Y.S.2d 876 (1977); 15 N.Y.Jur2d, Business Relationships, §1078), a foreign corporation's contracts must be more than the solicitation and placement or orders. Bayonne Block Co., Inc. v. Porco, 171 Misc. 2d 684, 654 N.Y.S.2d 961, 963 (N.Y. City Civ. Ct. Bronx Co. 1996). The corporation's activities in the state must be systematic and regular. Interline Furniture, Inc. v. Hodor Industries Corp., 140 A.D.2d 307, 527 N.Y.S.2d 544 (2d Dep't 1988); Dixie Dinettes, Inv. v. Schaller's Furniture, Inc., 71 Misc. 2d 102, 335 N.Y.S.2d 632 (N.Y. City Civ. Ct. 1972).
Although compliance with Business Corporation Law § 1312(a) need not be initially alleged in the complaint, it can subsequently be raised by the defendant pleading it as a defense or by "plaintiff's proof establish[ing] the facts that bring the section into play." Empire Mutual Ins. Co. v. International Tramp-Po-Line Mnfrs. Inc., 39 Misc. 2d 810, 242 N.Y.S.2d 28, 32 (Sup. Ct. Nassau Co. 1963). Indeed, Business Corporation Law § 1312(a) imposes "a condition precedent to the brining of any action," (see American Can Co. v. Grassi Contracting Co., 102 Misc. 2d 230, 168 N.Y.S. 689 (1st Dep't App. Term 1918), which can be raised at any time prior to judgment, even it not raised as a defense or an issue in defendant's answer. Ac-tin-o-lyte Roofing Co. v. Werner, 209 A.D. 742, 204 N.Y.S.562(1st Dep't 1924); Paper Manufacturers Co. v. RIS Paper Co., Inc., 86 Misc. 2d 95, 381 N.Y.S.2d 959, 962 (N.Y. City Civ. Ct. 1976). In American Can the court specifically held that a foreign corporation "has not made out its cause of action until it has proven compliance with the condition precedent and that [a] complaint should, therefore, be dismissed even though the answer has not set up such a defense." American Can Co. v. Grassi Contracting Co., 102 Misc. 2d 230, 232-233, 168 N.Y.S. 689, 691 (1st Dep't App. Term 1918).
For example, in Ac-tin-o-lyte, plaintiff, a foreign corporation, commenced a suit to collect payment for goods sold and delivered to defendant. Defendant's answer only contained general denials. At trial, through the cross-examination of the plaintiff's president, it was established that plaintiff was a foreign corporation conducting business in New York without the authority to do so. Even though the defendant had never before raised the issue, the court granted defendant's motion to dismiss at the close of the plaintiff's case. Ac-tin-l-lyte Roofing Co. v. Werner, 209 A.D. 742, 204 N.Y.S. 562 (1st Dep't 1924); see also Eclipse Silk Manufacturing Co. v. Hiller, 145 A.D. 568, 129 N.Y.S. 879 (1st Dep't 1911)("If upon trial, it should be developed that the defendant is a foreign corporation doing business in New York...the objection that the complaint did not state facts sufficient to constitute a cause of action is open to the defendant."); 15 N.Y.Jur2d, Business Relationships, § 1078.
Moreover, a section 1312(a) defense is a defense that can be most effectively asserted only after discovery because information concerning plaintiff's business activities within the state are generally within the exclusive control of the plaintiff. In Tynon v. D.R. McClain & Son, 131 Misc. 2d 203, 499 N.Y.S.2d 354 (Sup. Ct. St. Lawrence Co. 1986), after completing depositions, third-party defendant moved to amend its answer to assert a section 1312 defense. The court held that although an inquiry to the Department of State would have disclosed whether the foreign corporation was authorized to do business in the state, the inquiry would not have disclosed whether the foreign corporation was doing business in the state within the meaning of Business Corporation Law § 1312, and that, therefore, the third-party defendant did not possess knowledge of the foreign corporation's substantial business activity in the state until after the examinations before trial were conducted. Accordingly, the court granted the third-party defendant's motion to amend its answer.
Here, although Auriga's amended complaint and motion for summary judgment states facts which could make the statute applicable, Auriga does not produce any evidence, such as sworn affidavits stating that Auriga has not conducted business activities in New York, besides those incidental to interstate and international commerce. Indeed, counsel's letter, even after this Court raised the issue, does not deny that Auriga has conducted business activities in New York. Instead, it just says that no such evidence has been submitted. Such a position is intolerable where, as here, the information concerning Auriga's business activities within the state is clearly within its exclusive control and knowledge (see Bingham v. Wells, Rich, Greene, Inc., 34 A.D.2d 924, 311 N.Y.S.2d 508 (1st Dep't 1970)(generally motion for summary judgment should not be granted prior to completion of discovery where facts necessary to oppose motion may exist and are within the exclusive control of the moving party), and where there has yet to be any discovery solely due to Auriga's repeated requests to adjourn its deposition (see Affirmation of Douglas Lutz in opposition to plaintiff's motion for summary judgment).
In the absence of any facts concerning the extent of Auriga's business activities in New York, its motion for summary judgment is simply premature. See Empire Mutual Ins. Co. v. International Tram-Po-Line Mnfrs., Inc., 39 Misc. 2d 810, 242 N.Y.S.2d 28 (Sup. Ct. Nassau Co. 1963)(in absence of undisputed facts with respect to foreign corporation's business activities in the state, court declined to grant defendant's motion to dismiss and held that issue of plaintiff's right to maintain its action without complying with the statute had to await trial).
Accordingly, Auriga's motion for summary judgment should be denied, or, at minimum, not considered until either discovery has been completed or Auriga provides some evidentiary proof that they have not regularly conducted business activities within New York or have complied with the statute.
Three days later, on June 11, 1998, Justice Gowan issued his decision/order, follows:
ORDERED that in this action to recover the cost of goods sold and delivered to defendant, the motion (#002) of plaintiff for an order granting plaintiff summary judgment against defendant pursuant to CPLR 3212 and amending the caption of the action pursuant to CPLR 305, § 2001 and 3025 to correct the name of plaintiff is considered together with the cross-motion of defendant (#003) for an order pursuant to CPLR 3025(b) granting defendant leave to amend the answer to assert a counterclaim, and the motion and cross-motion are determined as follows:
Plaintiff has submitted proof in admissible form to establish its prima facie entitlement to recover the sum of $167,360 from defendant for the cost of cassette shells contracted for, sold and delivered to defendant. Lighting Horizons, Inc. v. E.A. Kahn, Inc., 120 A.D.2d 648 (2d Dept. 1986). In its opposition to the motion and in support of its cross-motion, defendant does not deny the existence of the sales agreement or receipt of the goods, or dispute the amount of plaintiff's contract claim; however, defendant contends that plaintiff breached the agreement by supplying the wrong packaging for a large number of cassette shells and by making late deliveries, for which alleged breach it now seeks to assert a counterclaim. Defendant has not submitted any evidence to support its claim that it incurred substantial costs in order to mitigate the effects of plaintiff's alleged breach, or that plaintiff's alleged breach caused defendant to in turn breach contracts with some of its customers. It is well established that mere conclusory, unsubstantiated allegations are insufficient to defeat a motion for summary judgment. Lighting Horizons, supra, 120 A.D.2d at 649.
Accordingly, plaintiff's motion for summary judgment is granted; and the cross-motion is denied as moot.
The branch of plaintiff's motion that seeks leave to amend the caption to correct plaintiff's name to read Auriga Plasticos, S.A. De C.V. in place and stead of Auriga Plasticos, S.A. De C.V., d/b/a Auruga Aurex, Inc. is granted in the absence of any prejudice to defendant.
Authentic Models, Inc. v. Gigwear Company, Inc., (N.Y. Civ. Ct., N.Y.Cty, Index No. 2519/96), was a goods sold and accepted action where the defendant first raised the defense of defective goods in opposition to the plaintiff's motion for summary judgment. [FN8]
FN8 New York permits a defendant to defeat a motion for summary judgment with an unpleaded defense. This rule was established in Curry v. Mackenzie, 239 N.Y. 267, 272 (1925), and reaffirmed in Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 182-83 (1982). Although an unpleaded defense may form the basis for denial of a motion for summary judgment, the defendant must still present evidentiary facts showing the existence of a bona fide issue requiring trial, Rera v. Rera 100 Misc. 2d 670, 673, 420 N.Y.S.2d 127, 128 (N.Y.Sup. Ct., Gowan, J. 1979).
In her decision of April 30, 1997, Judge Donna M. Mills rendered an unpublished decision in Authentic Models consistent with that of Justice Gowan in Auriga:
This is an action to recover money for goods sold and delivered. The plaintiff now moves this court for summary judgment.
It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, rendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v. N.Y.U. Medical Center, 64 NY2d 851, 853). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v. City of New York, 49 NY2d 557, 562).
In support of their motion for summary judgment the plaintiff offers documentary evidence and an affidavit establishing the delivery of the goods in question and an outstanding invoice. In opposition the defendant maintains that the goods delivered were of substandard quality and was denied by plaintiff and opportunity to return these items. Defendant also alleges that they had to sell the nonconforming goods for a fraction of the cost. Defendant however, failed to annex any documentary evidence to support their claims.
UCC 2-607 (1) requires a buyer to pay at the contract rate for any goods accepted and subdivision (3) of the section provides that upon buyer's failure to notify the seller of the alleged breach within a reasonable time, he is "barred from any remedy". Likewise, a [r]evocation acceptance must occur within a reasonable time after the buyer discovers the ground for it" (UCC 2-608[2]). The fatal flaw in the defendant's argument is its failure to set forth the date when it first complained to the plaintiff of the alleged defects, who complained on behalf of the defendant and to whom the complaint was registered, and how the complaint was communicated to the plaintiff. The evidentiary details are missing.
A party opposing a motion for summary judgment must assemble, lay bare and reveal its proofs to show that it can establish its defenses upon a trial of the action (see, Di Sabato v. Soffes, 9 AD2d 297, 301). This defendant's bald, conclusory assertion that it notified the plaintiff of the defects, without revealing the details of the notice, is insufficient to raise a triable issue of fact (see, Kramer v. Harris, 9 AD2d 283). Mere allegations of delivery of defective materials, will not, without more preclude a court from granting a plaintiff's motion for summary judgment (see, GTE Sylvania v. Jupiter Supply Co., 51 AD2d 993, 994; General Building Supply Corp. v. Shapn, Inc., 35 AD2d 550, 551).
No question 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 (see, Maggio Impotato v. Cimitron, Inc., 189 AD2d 654). Defendant's acceptance of the goods, even if the goods failed to conform to the contract, entitled plaintiff to recover the contract price (see, Sunny Side Up v. Agway, Inc., 40 A.D.2d 899).
Accordingly, plaintiff's motion for summary judgment is granted.
The decision in Authentic Models agreed with the plaintiff's argument in its reply memorandum of law, as follows:
POINT
THE OPPOSING AFFIDAVIT DOES NOT RAISE A TRIABLE ISSUE OF FACT
The defendant does not deny that, on March 28, 1995, Alan Hirsh, the President of the defendant, visited the plaintiff's Manhattan showroom and signed a purchase order (Exhibit "B") to purchase the models of musical instruments set forth on the purchase order at the prices and upon the terms set forth thereon. [FN(a)] The defendant does not deny it received the models at its place of business in Manhattan on June 19, 1995, (Exhibit "C"). The defendant does not deny the correctness of the invoice price of $5,549.20 including freight charges (Exhibit "D"). These uncontroverted facts must be deemed admitted by defendant, Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539, 544, 369 N.Y.S.2d 667, 671 (1975).
FN(a) The handwritten signature on the purchase order clearly reads Alan Hirsh, President.
The defendant's President tries to raise an issue of fact by asserting that the models were of substandard quality upon receipt. The defendant wanted to return the goods. The plaintiff refused to accept their return because of the plaintiff's policy that no returns will be accepted without plaintiff's prior approval. The defendant says that it "never agreed to be bound by such an onerous provision."
When the defendant served its answer, it raised three affirmative defenses, none of which related to a claim of breach of warranty. [FN(b)] The defendant first raised the defense of defective goods in the defendant's opposing affidavit. The defendant's attempt to create a triable issue of fact runs afoul of the facts and of the law.
FN(b) The first affirmative defense was that the complaint fails to state a cause of action. City Civ. Ct. Act § 902 makes the requirements of formal pleading inapplicable to an indorsement pleading if the plaintiff's cause of action is for money only. The indorsed complaint in this action certainly satisfies the cited section. Defendant's second affirmative defense of improper service of process was obviated by reservice of the summons and complaint upon the Secretary of State as statutory designee of defendant corporation on December 18, 1996, (Exhibit "E"), and by giving notice of service thereof to defendant's attorney on December 27, 1996, (Exhibit "G"), Dashew v. Cantor, 85 A.D.2d 619, 445 N.Y.S.2d 24, 25 (1981). Plaintiff's name was amended by an order of the court filed October 15, 1996, a copy of which is annexed to the marked pleadings. Defendant's third affirmative defense that plaintiff is not authorized to do business in the State of New York became moot when the plaintiff became authorized to do business in New York State on May 24, 1996, (Exhibit "A").
These facts take the form of documentary evidence: the purchase order signed by the defendant's president (Exhibit "B"). The terms of the purchase order with respect to plaintiff's return policy state:
Return Policy: Inspect goods upon receipt. Report shortage, damage or defects within 14 days of receipt. No returns will be accepted without prior approval. Authorized return number must be displayed on packages. Returns may be subject to restocking fees.
Obviously the defendant did agree with the plaintiff's return policy when its President signed the purchase order. The current claim by the defendant's President that he did not consent to the plaintiff's return policy is patently false, Hanrog Distributing Corp. v. Hanioti, 10 Misc. 2d 659, 660, 54 N.Y.S.2d 500, 501 (Sup. Ct. 1945).
The defendant does admit that the alleged defects in the goods were known "upon receipt of the goods." [FN(c)] Where defects in goods are readily discoverable, a contractual term requiring notice of claim within ten days after receipt of the goods was found to be binding, Jessel v. Lockwood Textile Corp., 276 A.D. 378, 379, 95 N.Y.S.2d 77, 78 (1950). A contractual term requiring notice of defects within five days after receipt of the goods was found to be binding, Siegel Kahn Co. v. Knickerbocker Underwear Co., 81 N.Y.S.2d 541, 542 (N.Y. App. Term 1st Dept. 1948).
FN(c) See 5 of the opposing affidavit.
U.C.C. § 2-602(1) requires that rejection of goods must be made within a reasonable time after their delivery if "the buyer seasonably notifies the seller." U.C.C. § 2-607(1) requires the buyer to pay at the contract rate for any goods accepted, unless under U.C.C. § 2-607(3)(a) the buyer notifies the seller of the breach within a reasonable time after he discovers or should have discovered any breach. U.C.C. § 2-607(4) places the burden on the buyer to establish any breach with respect to goods accepted.
The fatal flaw in the defendant's argument is its failure to set forth the date when it first complained to the plaintiff of the alleged defects, who complained on behalf of the defendant and to whom the complaint was registered, and how the complaint was communicated to the plaintiff. The evidentiary details are missing.
A party opposing a motion for summary judgment must assemble, lay bare and reveal its proofs to show that it can establish its defenses upon a trial of the action, Di Sabato v. Soffes, 9 A.D.2d 297, 301, 193 N.Y.S.2d 184, 189 (1959). The defendant does not claim that these facts are not within its control, S.J. Capelin Assoc., Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 342, 357 N.Y.S.2d 478, 481 (1974); and therefore this defendant is required to present its proof in detail to show that it did, in fact, communicate notice of the defective goods to the plaintiff. This defendant's bald, conclusory assertion that it notified the plaintiff of the defects, without revealing the details of the notice, is insufficient to raise a triable issue of fact, Kramer v. Harris, 9 A.D.2d 283, 283, 193 N.Y.S.2d 548, 550 (1959). The defendant's conclusory assertions do not meet the standard necessary to defeat the plaintiff's summary judgment motion, Kruger Pulp & Paper Sales, Inc. v. Intact Containers, Inc., 100 A.D.2d 894, 895, 474 N.Y.S.2d 554, 555 (1984).
Other cited cases have been decided upon the same grounds as Auriga and Authentic Gigwear.
Kohl Madden Printing Ink v. Goshen Litho, Inc., 94 A.D.2d 660, 462 N.Y.S.2d 462 (1983), granted plaintiff's motion for summary judgment holding:
That Goshen accepted and used K & M's inks without payment for a period of some four months with full awareness of their performance characteristics is clear (see UCC § 2- 607). Nor do we believe that the intermittent undated oral complaints to unidentified K & M personnel over the several years in which Goshen was receiving and using those inks constitute the kind of notice within a reasonable time after a buyer discovers or should have discovered any breach that preserves Goshen's right to avail itself of damages in regard to accepted goods. See UCC § 2-607(3)(a); §§ 2-714 and 2-715; see also Anderson, Uniform Commercial Code (2d ed) § 2-607:43.
In effect Goshen denies its obligation to pay for inks received and used over a period of four months, and seeks to recover damages for inks used over a period of years, on the basis of an alleged belated discovery that a chemist it employed for the purpose, using K & M's inks, was able to introduce modifications which improved the performance of the inks. Nothing in these studiously evasive allegations raises a factual question requiring a trial.
G & D Poultry Farms v. Long Is. Butter & Egg Co., 33 A.D.2d 685, 306 N.Y.S.2d 243 (1969), granted summary judgment to the plaintiff and dismissed defendant's counterclaim holding that:
in plaintiff's merchandise. Not only was the delay in asserting said claim unreasonable as a matter of law but, despite knowledge of alleged defects, defendant continued to order additional goods and pay for same without once indicating to plaintiff that it was dissatisfied with the quality of the merchandise or wished to raise a claim in setoff (Bangor Clothing Co. v. Superior Sportswear Corp., 22 A.D.2d 864, 254 N.Y.S.2d 415, affd. 16 N.Y.2d 1018, 265 N.Y.S.2d 901, 213 N.E.2d 312; Uniform Commercial Code, § 2--607, subd. (3), par. (a)). There being no bona fide triable issue presented as to the cause of action set forth in the complaint, plaintiff is entitled to summary judgment in full.
Sunkyong Am., Inc. v. Beta Sound of Music Corp., 199 A.D.2d 100, 605 N.Y.S.2d 62 (1993), in affirming a grant of summary judgment, expressed the rule:
The uncontroverted evidence established a sale and delivery of the goods in question, the defendant's acceptance of the goods and its failure either to pay the agreed upon price or raise any objection to the sale terms, as reflected in the invoices, when the goods were delivered or within a reasonable time thereafter (see, Avis Rent A Car Sys. v. McNamara Buick Pontiac, 90 A.D.2d 783, 455 N.Y.S.2d 643; Sunbeam Corp. v. Morris Distrib. Co., 55 A.D.2d 722, 723, 389 N.Y.S.2d 173).
The parol evidence rule embodied in UCC 2-202 bars the introduction by the defendant of proof of any alleged oral agreement between the parties which would vary the terms of the plaintiff's invoices, which were the final written expression of the parties' sales agreement (see, Battista v. Radesi, 112 A.D.2d 42, 491 N.Y.S.2d 81).
In addition, defendant's conduct, in reselling the goods to its retail customers, constituted acceptance under UCC 2-606(1)(c), which provides, in pertinent part, that goods are accepted when the buyer "does any act inconsistent with the seller's ownership", such as a resale (cf., Maggio Importato v. Cimitron, Inc., 189 A.D.2d 654, 592 N.Y.S.2d 325, lv. denied, 82 N.Y.2d 652, 601 N.Y.S.2d 582, 619 N.E.2d 660).
In Gem Source Int'l Ltd. v. Gem Works N.S. L.L.C., 258 A.D.2d 373, 685 N.Y.S.2d 682 (1999), lv. to appeal dismissed, 93 N.Y.2d 999, 695 N.Y.S.2d 745, reversed the trial court and granted a motion for summary judgment stating:
The parties negotiated a series of consignment contracts whereby plaintiff supplier would deliver diamonds to defendant jewelry manufacturer, on a "gentlemen's agreement" that payment need not be made until the jewelry was ultimately sold to a buyer. Admittedly, Tiffany & Co. was the ultimate wholesale purchaser of all of this jewelry from the defendant consignee.
Defendant's resale of the diamonds was inconsistent with the consignor's "ownership" of the goods, thus constituting acceptance under UCC 2-606(1)(c) (Sunkyong America v. Beta Sound of Music Corp., 199 A.D.2d 100, 101, 605 N.Y.S.2d 62). The act of resale extinguished any objection defendant might have had to its receipt of the diamonds based upon inferior quality (citations omitted).
To see this article in a full-page format please link to http://jccc.wld.com/article-01.htm#iv