MAGGIO IMPORTATO, INC. v. CIMITRON INC

We agree with the IAS Court that no questions of fact exist involving defendant's acceptance of the goods shipped by plaintiff. Defendant's mere complaint about the goods does not constitute a clear and unequivocal act of rejection. Moreover, defendant's use of the goods and failure to return same constituted an acceptance of the goods (UCC 2-606; Computerized Radiological Servs. v. Syntex Corp., 786 F.2d 72). Defendant's acceptance of the goods, even if the goods failed to conform to the contract, entitles plaintiff to recover the contract price (Sunny Side Up v. Agway, Inc., 40 A.D.2d 899).

Concur — Sullivan, J.P., Milonas, Ellerin and Wallach, JJ.