                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: October 30, 2014                     517895
________________________________

FERRATELLA BROTHERS, LLC,
                    Appellant-
                    Respondent,
      v                                       MEMORANDUM AND ORDER

JOSEPH SACCO,
                    Respondent-
                    Appellant.
________________________________


Calendar Date:     September 11, 2014

Before:     Peters, P.J., Lahtinen, Stein, Garry and Devine, JJ.

                               __________


         Samuel Castellino, Big Flats, for appellant-respondent.

      Pope & Schrader, LLP, Binghamton (Kurt Schrader of
counsel), for respondent-appellant.

                               __________


Lahtinen, J.

      Cross appeals from an order of the Supreme Court (O'Shea,
J.), entered January 4, 2013 in Chemung County, upon a decision
of the court partially in favor of defendant.

      In August 2006, plaintiff agreed to purchase a point of
sale system from defendant for its restaurant.1 The system


     1
        The system was intended to, among other things, assist in
tracking restaurant orders, maintaining inventory, monitoring
catering orders, processing credit card payments, including
supplying separate information regarding tips, and maintaining
information about employees ranging from payroll to scheduling.
                              -2-                517895

included computer hardware and software as well as setup.
Defendant was unable to get the system operating to plaintiff's
full satisfaction and, in January 2008, the parties executed a
written agreement providing that defendant had until March 15,
2008 to have the system operating to plaintiff's satisfaction.
If defendant did so, plaintiff would pay the balance of $3,000 –
the amount agreed to be due on the original contract – and if
defendant failed to do so, plaintiff could return all equipment
and defendant would reimburse plaintiff all payments previously
made to defendant in the amount of $12,000. The agreement's
deadline was thereafter extended to April 15, 2008.

      In October 2011, plaintiff commenced this action alleging
breach of the January 2008 agreement and seeking the return of
all monies it had paid defendant. Defendant counterclaimed for
the unpaid balance on the equipment, which was still being used
by plaintiff. After a nonjury trial, Supreme Court dismissed
both plaintiff's action and defendant's counterclaim. Both
parties appeal.

      We affirm. The parties' initial transaction, involving
primarily a sale of goods (computer software and hardware), was
governed by UCC article 2 (see Sears, Roebuck & Co. v Galloway,
195 AD2d 825, 826 [1993]). A purchaser's remedies when seeking
full reimbursement for nonconforming goods include, among other
things, revoking acceptance within a reasonable time of delivery
(see Hooper Handling v Jonmark Corp., 267 AD2d 1075, 1075-1076
[1999]; Cliffstar Corp. v Elmar Indus., 254 AD2d 723, 724
[1998]); however, the failure to promptly revoke acceptance does
not necessarily foreclose other relief (see B. Milligan Contr. v
Mancini Assoc., 174 AD2d 136, 139 [1992]; V. Zappala & Co. v
Pyramid Co. of Glens Falls, 81 AD2d 983, 984 [1981], lv denied 55
NY2d 603 [1981]). The parties' January 2008 agreement
established a specific date not only for defendant's complete
performance, but also for plaintiff's right of a full refund upon
return of the equipment.

      Proof at trial established that plaintiff kept and used the
equipment for 3½ years beyond the specifically agreed to date
before commencing this litigation and, in fact, was still using
the equipment at the time of trial. Plaintiff's delay was
                              -3-                  517895

unreasonable under the UCC as well as the specific terms of the
January 2008 agreement, and Supreme Court did not err in
dismissing plaintiff's action seeking a full refund. Further,
Supreme Court's dismissal of defendant's counterclaim is
supported by ample evidence that defendant failed to get the
system operating in complete compliance with the contract, and
that the amount that defendant had already received constituted
reasonable compensation for the system that was delivered.

     Peters, P.J., Stein, Garry and Devine, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
