Rochester Welding Supply Corp. v. Burroughs Corp.

Doerr, J. (dissenting).

I disagree. Both parties transacted their business at arm’s length as evidenced by the detailed contract mutually agreed upon. The agreements besides shortening the time within which an action could be brought (Uniform Commercial Code, § 2-725, subd [1]), provided that “No representation or other affirmation of fact not set forth herein, including but not limited to statements regarding capacity, suitability for use, or performance of the equipment shall be deemed to be a warranty by Burroughs for any purpose, nor give rise to any liability or obligation of Burroughs whatever.” Efforts by defendant to satisfy plaintiff’s complaints about the equipment cannot serve to enlarge the warranties expressly provided for in the contract. To hold that the contract could never be performed until plaintiff was finally satisfied and ultimately approved the sale at some future date in effect nullifies the warranty provisions agreed upon and the period of limitation contained in the contract. Assuming, arguendo, that the warranties extended to future performance of the equipment, plaintiff’s action is still time barred. “A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered” (emphasis added) (Uniform Commercial Code, § 2-725, subd [2]). Here the breach was discovered almost immediately upon delivery of the equipment in late summer 1975 and therefore the Statute of Limitations, even with regard to “future performance”, began to run at that time. The action, commenced May 10,1978, was not timely (see Gemini Typographers v Mergenthaler Linotype Co., Div. of Eltra Corp., 48 AD2d 637). (Appeal from judgment of Monroe Supreme Court— dismiss complaint.) Present — Simons, J. P., Hancock, Jr., Schnepp, Doerr and Witmer, JJ.