        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

300
CA 16-01312
PRESENT: WHALEN, P.J., SMITH, CENTRA, CURRAN, AND SCUDDER, JJ.


B. THOMAS GOLISANO, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

VITOCH INTERIORS LTD., ARTHUR VITOCH AND
NORMA J. GOLDMAN, DEFENDANTS-APPELLANTS.


GEIGER AND ROTHENBERG, LLP, ROCHESTER (DAVID ROTHENBERG OF COUNSEL),
FOR DEFENDANTS-APPELLANTS.

CULLEY MARKS TANENBAUM & PEZZULO, LLP, ROCHESTER (GLENN E. PEZZULO OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Matthew
A. Rosenbaum, J.), entered May 9, 2016. The order denied defendants’
motion for summary judgment dismissing plaintiff’s complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Sometime in November or December 2013, plaintiff
hired defendants to refurbish his luxury motor yacht. According to
plaintiff, defendants were retained to prepare an interior design
scheme, including color schemes, new furniture, wall coverings, floor
coverings, lighting treatments, and window treatments. As part of the
work, defendants were to re-upholster certain existing furniture and
refurbish existing built-ins and wall panels, as well as provide new
carpeting, draperies, lighting fixtures, paintings, furniture, and bed
linens. Plaintiff alleges, inter alia, that defendants promised to
charge him “[d]efendants’ wholesale cost or [d]efendants’ preferred
price for all goods and materials.” Although plaintiff’s wife and the
yacht’s captain also attested to those terms, there is no writing
memorializing the agreement. In total, plaintiff paid defendants
$811,067.34 for goods and services for the project, which was
completed in June 2014.

     Plaintiff commenced this action in September 2015, asserting
causes of action for breach of contract and unjust enrichment, and
seeking to recoup some of the monies paid for goods and materials.
Following some discovery, defendants moved for summary judgment,
contending that the contract between the parties was predominantly for
the sale of goods, and not for services, and that the contract was
therefore governed by article 2 of the Uniform Commercial Code.
Defendants further contended that, having accepted all goods sold and
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                                                         CA 16-01312

delivered by defendants and paid in full without any reservation of
rights, plaintiff is barred under UCC article 2 from recovering any of
the purchase price paid. Supreme Court denied the motion, and we
affirm.

     To establish on their motion that the parties’ agreement is
governed by UCC article 2, defendants had the burden of establishing
as a matter of law that the parties’ agreement was “ ‘predominantly’ ”
one for the sale of goods, as opposed to the furnishing of services
(Levin v Hoffman Fuel Co., 94 AD2d 640, 640, affd 60 NY2d 665; see
Milau Assoc. v North Ave. Dev. Corp., 42 NY2d 482, 486). Defendants
therefore had to establish that the parties’ “main objective” in their
agreement was for defendants to provide plaintiff with such goods (Ben
Constr. Corp. v Ventre, 23 AD2d 44, 45; see also Perlmutter v Beth
David Hosp., 308 NY 100, 104-105, rearg denied 308 NY 812). We
conclude that defendants failed to meet their burden (see Zuckerman v
City of New York, 49 NY2d 557, 562). Inasmuch as the transaction was
predominantly service-oriented, it falls outside the provisions of UCC
article 2 (see County of Chenango Indus. Dev. Agency v Lockwood Greene
Engrs., 114 AD2d 728, 729, appeal dismissed 67 NY2d 757; see also
Geelan Mechanical Corp. v Dember Constr. Corp., 97 AD2d 810, 811), and
the motion was therefore properly denied.




Entered:   May 5, 2017                          Frances E. Cafarell
                                                Clerk of the Court
