107 A.D.2d 565 | N.Y. App. Div. | 1985
— Order, Supreme Court, New York County (Saxe, J.), entered June 29, 1983, granting defendant’s motion to dismiss the complaint, unanimously reversed, on the law, with costs and disbursements, and the motion denied.
Plaintiff American Tempering, Inc. (ATI) is a California manufacturer of construction glass. In or about October, 1980, defendant Craft Architectural Metals Corp. (Craft) inquired as to the possible purchase of certain glass items from ATI for use in connection with a construction project in which it was then engaged. After negotiations the parties reached an agreement whereby ATI would supply annealed and insulating glass and heat-strengthened laminated glass to Craft for a price of $113,600. Plaintiff has supplied all of the purchased materials and by this action seeks to recover the sum of $8,537.44 which is alleged to be outstanding.
Special Term dismissed the complaint as time barred. Defendant’s purchase order contained the following language: “Any action or proceeding on any claim arising out of or in connection with this Purchase Order or the breach thereof, including any claim for extra or additional compensation or otherwise, must be brought by the Vendor within one year from the date upon which Vendor last furnished material to or performed labor hereunder.” Defendant’s form also contained a provision prohibiting modification of the terms of the purchase agreement unless in a writing signed by the party against who enforcement is sought. Since ATI had last furnished material to Craft on May 11, 1981, the court found that the instant action had been untimely commenced on May 26, 1982.