E. Y. Gilkey & Sons, Inc. v. A-E Architectural Materials, Inc.

Order unanimously affirmed, with costs. Memorandum: Special Term properly granted summary judgment dismissing plaintiff’s complaint as barred by the Statute of Frauds (Uniform Commercial Code, § 2-201, subd [1]). Plaintiff seeks to recover for breach of an alleged contract under which defendant promised to supply windows at an agreed price of $18,000 for installation on a school job on which plaintiff was a contractor. Concededly there is no writing signed by or on behalf of defendant. Plaintiff’s contention that defendant is deprived of the defense of subdivision (1) of section 2-201 of the Uniform Commercial Code because of its failure to object in writing to plaintiff’s order for the windows dated June 23, 1980 within 10 days of its receipt must be rejected. While the transaction is one “ ‘[b]etween merchants’ ” (Uniform Commercial Code, § 2-104, subd [3]), it is clear from the complaint and affidavits that the order of June 23, was not “in confirmation of” any prior oral agreement for the purchase of the windows. On the contrary, the complaint alleges that the contract sued on was made on June 23, 1980, the date of the purchase order. Plaintiff’s affidavits refer to no oral agreement prior to June 23 but state that the alleged contract was formed by defendant’s acceptance through its conduct and its acquiescence by failing to object to the June 23 order. Thus, subdivision (2) of section 2-201 of the Uniform Commercial Code is not applicable and the alleged contract is unenforceable under subdivision (1) of section 2-201 of the Uniform Commercial Code (see Itoh & Co. [Amer.] v Jordan Int. Co., 552 F2d 1228, 1232, 1233; Matter of Marlene Inds. Corp. [Carnac Textiles], 45 NY2d 327, 331; Pecker Iron Works v Sturdy Concrete Co., 96 Misc 2d 998, 1003; 3 Duesenberg-King, Sales and Bulk Transfers under the Uniform Commercial Code, § 2.04[2], pp 2-68, 2-73). (Appeal from order of the Supreme Court, Onondaga County, Murphy, J. — dismiss complaint.) Present — Dillon, P. J., Hancock, Jr., Callahan, Doerr and Boomer, JJ.