Judge Frank Nervo
Apparel manufacturer Palitex sued to recover damages resulting from AO Textile’s alleged breach of contract. Palitex claimed AO failed to provide material suitable for use by Palitex in manufacturing coats. Palitex objected to the quality of a plum color fabric sent by AO. AO’s Korean representative inspected and accepted the return of the plum material at Palitex’s China location. AO also offered to inspect the gold fabric, but Palitex refused, yet subsequently objected to the quality of the gold fabric and cancelled its order for the material. AO asserted Palitex’s failure to permit the inspection, and untimely return of two small swatches of the gold material deprived it of any opportunity to cure the defect as provided under UCC §2-508. The court stated the right of a buyer to recover damages was preserved if it notified the seller within a reasonable time after discovery of any breach. It stated waiting an additional 20 days to open cartons of the gold material and then raising objections was unreasonable. The court concluded Palitex’s rejection was untimely, ruling AO was not given an opportunity to cure. Therefore, the complaint was granted dismissal and judgment entered in AO’s favor.
