TOWNSIDE FUR. & DECORATORS v. BEST LUMBER, 148 A.D.2d 442 [2d Dept 1989]___ N.Y.S.2d ___

TOWNSIDE FURNITURE & DECORATORS, INC., Appellant, v. BEST LUMBER & MILLWORK CO., INC., Defendant and Third-Party Plaintiff-Respondent. STYRO SALES CO., Third-Party Defendant-Respondent. Appellate Division of the Supreme Court of the State of New YorkSecond Department March 6, 1989 Appeal from the Supreme Court, Queens County (Lonschein, J.). Ordered that the order is affirmed, with costs to the third-party defendant Styro Sales Company. We find, as did the Supreme Court, that triable issues of fact exist as to whether, inter alia, the plaintiff rejected the nonconforming goods in a timely fashion (see, Fil-Coil Co. v International Power Sys. Equip. Corp., 123 A.D.2d 599; General Elec. Credit Corp. v. Xerox Corp., 112 A.D.2d 30). Accordingly, the plaintiff's motion for summary judgment was orrectly denied. Additionally, we note that it was proper for the third-party defendant to have opposed the plaintiff's motion for summary judgment based upon the defenses available in the main Page 443 action (see, CPLR 1008 N.Y.C.P.L.R.; Lewis v. Borg-Warner Corp., 35 A.D.2d 722; T.R. Am. Chems. v. Seaboard Sur. Co., 116 Misc.2d 874). Brown, J.P., Eiber, Sullivan and Harwood, JJ., concur.