Sabbeth Industries, Ltd., Appellant, v. Innovative Computer Concepts, Inc., Respondent

Sabbeth Industries, Ltd., Appellant, v Innovative Computer Concepts, Inc., Respondent. [667 NYS2d 937] [MAJORITY] In an action to recover damages for breach of warranty, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Gowan, J.), entered September 16, 1996, which, upon the granting of the defendant’s motion pursuant to CPLR 4401, made at the close of the plaintiff’s case, for judgment during trial dismissing the complaint for failure to establish a prima facie case, is in favor of the defendant and against it.. Ordered that the judgment is affirmed, with costs. Contrary to the plaintiff’s contention, the Supreme Court did in fact base its judgment on the proposition that the sale of a computer software package is a sale of a good controlled by the provisions of the Uniform Commercial Code (see, e.g., Communications Groups v Warner Communications, 138 Misc 2d 80). The court did not err in granting the defendant’s motion since there was a complete failure of proof by the plaintiff on the issue of damages for breach of warranty (see, UCC 2-315, 2-714 [2])/ The plaintiff’s remaining contention is without merit (see, Napoli v Canada Dry Bottling Co., 166 AD2d 696; Bertan v Richmond Mem. Hosp. & Health Ctr., 106 AD2d 362). Sullivan, J. P., Pizzuto, Santucci and Florio, JJ., concur.