International Business Machines Corp. v. Universal Transcontinental Corp.

In an action to recover damages for negligence and breach of contract involving the loss of the plaintiff’s property *511while in the possession of the defendant, the plaintiff appeals from an order of the Supreme Court, Westchester County (Palella, J.), entered August 26, 1985, which denied its motion for summary judgment.

Order affirmed, with costs.

There are several issues that preclude a summary determination. Although the plaintiff now asserts a claim based on conversion, it pleaded no such claim. The defendant alleges that it has a Statute of Limitations defense. Furthermore, there are claims of estoppel and doubts are raised as to the defendant’s status as a warehouseman under the Uniform Commercial Code despite the references in the contract to warehouse charges. Under all the circumstances, a trial is warranted. Lazer, J. P., Fiber, Kunzeman and Kooper, JJ., concur.