Defendant Newmark & Lewis Syosset Corp., as seller, moves for summary judgment dismissing a purchaser’s complaint which alleges a breach of contract because the merchandise, a refrigerator, did not comply with the implied warranties of merchantability and fitness set forth in sections 2-314 and 2-315 of the Uniform Commercial Code.
The defendant contends that section 2-316 of the Uniform Commercial Code permits a disclaimer of implied warranties, and exhibited the “ purchase order ” to show that it had disclaimed. Although the prelude to the disclaimer stating: 11 All orders accepted are subject to the following:” was in larger type, the disclaimer was in five-point type and smaller than the type on the rest of the “ purchase order ”.
The burden of preparing an effective disclaimer is heavy. It is one of the hazards of business. Before a merchant can disqualify for the implied warranties the public has become accustomed to, it must show that the customer was clearly placed on notice. (Morino v. Maytag Atlantic Co., 141 N. Y. S. 2d 432.) A reading of section 2-316 relied upon by the defendant indicates that any written disclaimer must be conspicuous. Conspicuous is defined in section 1-201 of the Uniform Commercial Code. “General Definitions. * * * (10 ‘ Conspicuous ’: A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: non-negoitable bill of lading) is conspicuous. Language in the body of a form is ‘ conspicuous ’ if it is in larger or other contrasting type or color. But in a telegram any stated term is ‘ conspicuous ’. Whether a term or clause is ‘ conspicuous ’ or not is for decision by the court.” (Emphasis added.)
Since the disclaimer is smaller, not larger, than the rest of the purchase order, it is not conspicuous. Accordingly, defendant’s motion for summary judgment dismissing the complaint is denied.
Whether the conduct or conversation constituted a disclaimer under section 2-316 is an issue of fact to be determined at the trial. Short-form order entered.