Opinion
February 23, 1999
Appeal from the Supreme Court, New York County (Herman Cahn, J.).
Plaintiff is entitled to summary judgment in this action: for goods sold and delivered. The parties negotiated a series of consignment contracts whereby plaintiff supplier would deliver diamonds to defendant jewelry manufacturer, on a "gentlemen's agreement" that payment need not be made until the jewelry was ultimately sold to a buyer. Admittedly, Tiffany Co. was the ultimate wholesale purchaser of all of this jewelry from the defendant consignee.
Defendant's resale of the diamonds was inconsistent with the consignor's "ownership" of the goods, thus constituting acceptance under UCC 2-606 (1) (c) ( Sunkyong Am. v. Beta Sound of Music Corp., 199 A.D.2d 100, 101). The act of resale extinguished any objection defendant might have had to its receipt of the diamonds based upon inferior quality ( Maggio Importato v. Cimitron, Inc., 189 A.D.2d 654, lv denied 82 N.Y.2d 652) or fraudulent inducement ( Seiko Time Corp. v. Video Assocs., 99 A.D.2d 941, appeal withdrawn 62 N.Y.2d 977) by reason of the divided loyalty of one of its principals.
Concur — Wallach, J. P., Lerner, Tom and Andrias, JJ.