HANOVER SQUARE ANTIQUES LTD v. INSALACO

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Supreme Court, Appellate Division, First Department, New York.

HANOVER SQUARE ANTIQUES, LTD., etc., Plaintiff-Appellant, v. Dennis R. INSALACO, et al., Defendants-Respondents.

Decided: March 22, 2005

TOM, J.P., ANDRIAS, SAXE, FRIEDMAN, NARDELLI, JJ. Gold, Stewart, Kravatz & Stone, LLP, Westbury (Cheryl Spinner Kravatz of counsel), for appellant. Michael J. Collesano, New York, for respondents.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered February 2, 2004, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

 The claims for breach of warranty and fraud were untimely (UCC 2-725 [1] ), since plaintiff commenced this action more than four years after the sale of the painting, when the causes accrued.   Moreover, the contract did not fall within the future performance exception of UCC 2-725(2), since there was no express warranty of future performance in the invoice of sale (Rosen v. Spanierman, 894 F.2d 28 [2d Cir.1990] ).