S & H Communications, Inc., Respondent, v. Seiscor Technologies, Inc., Appellant, et al., Defendants

S & H Communications, Inc., Respondent, v Seiscor Technologies, Inc., Appellant, et al., Defendants. [633 NYS2d 146] [MAJORITY] —Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered March 18, 1994, which, inter alia, denied Seiscor Technologies, Inc.’s motion for summary judgment seeking dismissal of plaintiff’s breach of warranty cause of action, unanimously affirmed, with costs. UCC 2-401 (1), (2) and (3) are not applicable to the instant situation as the buyer and seller of the allegedly nonconforming goods "explicitly agreed” in their contract that "[u]ntil payment in full is made to the sellers [plaintiff S & H Communications, Inc.], interests, rights and title to the equipment [telephones] shall remain with the sellers.” As Metropolitan Pay Phone, Inc. ("Metropolitan”), which contracted to purchase plaintiff’s stock, never paid plaintiff under their agreement, the "interests, rights and title to the equipment” never passed to Metropolitan. Accordingly, plaintiff continues to possess the right to sue on the equipment’s warranty. Notwithstanding that plaintiff sued Metropolitan and was awarded a money judgment for breach of the contract of sale, plaintiff did not lose its right to sue on the equipment’s warranty since that judgment remains completely unsatisfied. Concur—Ellerin, J. P., Wallach, Nardelli and Williams, JJ.