48 A.D.2d 637 | N.Y. App. Div. | 1975
Order, Supreme Court, New York County, entered February 4, 1975 granting plaintiff’s motion to restore the case to the Trial Calendar and granting in part defendant’s cross motion for summary judgment as to the first cause of action, unanimously modified insofar as appealed from, on the law, to the extent of granting summary judgment to the defendant on the second and fourth causes of action and otherwise affirmed, without costs or disbursements. Plaintiff’s assignor, Sheepshead Typographers, Inc., (Typographers), was engaged in the business of typesetting. Typographers’ work required completing printing orders on a deadline basis. Typographers had five older linotyping machines and were seeking to have them repaired. Mergenthaler Linotype Company (Mergenthaler) was made aware of the nature of Typographers’ work and recommended to it the purchase of a "Linofilm” unit rather than repair of the older units. A demonstration was arranged and ultimately a used model was sold to Typographers with the guarantees normally afforded a new model. The equipment was delivered on July 1, 1965. The machinery was somewhat more complex and sophisticated, requiring air conditioning and sanitary precautions in order to achieve smooth functioning of the machinery. Typographers experienced difficulties in use of the machinery almost from the moment of installation, though representations as to ease of operation and maintenance had been made by Mergenthaler. Typographers commenced this action on February 16, 1970, alleging four causes of action: negligence in design, manufacture and servicing; breach of warranty; fraud in the inducement; and breach of a servicing agreement. The subject of this appeal is the denial of defendant’s cross motion to dismiss the complaint