RUBIN v. LLC (2025)

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about June 11, 2024, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff's delay of between two and three and a half years in giving notice of rejection of the goods is unreasonable as a matter of law, where plaintiff paid $18 million for jewelry without any appraisal or verification of its nature or quality (see UCC 2–608[2];  Tabor v. Logan, 114 A.D.2d 894, 894, 495 N.Y.S.2d 67 [2d Dept. 1985]).  This is particularly true here, where plaintiff had the means and sophistication to obtain her own appraisal.

We do not reach plaintiff's claims for breach of warranty under UCC 2–313 and 2–314, as they were never pleaded or stipulated to, and there was no prior pending motion to amend.  Were we to reach the claims, we would find that they are barred for unreasonably late notice (see UCC 2–607[3]).

Plaintiff's claims for rescission and breach of the covenant of good faith and fair dealing are not separate from the breach of contract claim, and the dismissal of that claim mandates dismissal of these claims as well (see UCC 2–608, Comment 1;  see also Quail Ridge Assoc. v. Chemical Bank, 162 A.D.2d 917, 919, 558 N.Y.S.2d 655 [3d Dept. 1990] [no recovery for violation of good faith absent some other basis for recovery], lv dismissed 76 N.Y.2d 936, 563 N.Y.S.2d 64, 564 N.E.2d 674 [1990];  Super Glue Corp. v. Avis Rent A Car Sys., 132 A.D.2d 604, 606, 517 N.Y.S.2d 764 [2d Dept. 1987] [“Code does not permit recovery of money damages for not acting in good faith where no other basis of recovery is present”]).

Plaintiff's claim for unjust enrichment is barred by the existence of express contracts governing the subject matter (see Pappas v. Tzolis, 20 N.Y.3d 228, 234, 958 N.Y.S.2d 656, 982 N.E.2d 576 [2012]).