76 A.D.2d 897 | N.Y. App. Div. | 1980
In an action to recover damages for breach of contract, plaintiff appeals from an order of the Supreme Court, Putnam County, dated April 2, 1979, which granted defendant’s motion to dismiss the complaint on the ground that the action was barred by the applicable Statute of Limitations. Order reversed, with $50 costs and disbursements, and the matter is remitted to Special Term for an immediate trial pursuant to CPLR 3211 (subd [c]) in accordance herewith. The record is insufficient to permit us to determine whether the parties’ contract is in essence one for "services”, and accordingly governed by the general contractual six-year Statute of Limitations period set forth in CPLR 213 (subd 2), or one for a "sale” of goods, in which event the four-year Statute of Limitations period set forth in section 2-725 of the Uniform Commercial Code would apply. (Cf. Milau Assoc. v North Ave. Dev. Corp., 42 NY2d 482, 485-486; Schenectady Steel Co. v Trimpoli Gen. Constr. Co., 43 AD2d 234, 237, affd on other grounds 34 NY2d 939.) Under the circumstances of this case, an immediate trial of this issue is appropriate. (See CPLR 3211, subd [c]; cf. Usher v Usher, 41 AD2d 368.) Margett, J. P., Martuscello and O’Connor, JJ., concur.
Weinstein, J., dissents and votes to affirm the order, with the following memorandum: Plaintiff sued for damages arising from an alleged breach of an express warranty in a contract for the sale and installation of a security fire alarm system. Installation of the system was completed in May, 1973