Board of Education of Middle Country Central School District at Centereach v. Polymer Plastics Corp.

In an action to recover damages, inter alia, for breach of warranty, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Gerard, J.), dated October 9, 1991, as granted that branch of the plaintiff’s motion which was to dismiss its fifth affirmative defense.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant maintains that the court erred in dismissing its fifth affirmative defense which alleged that the plaintiff’s breach of warranty action was untimely. We disagree. Whether the contract entered into by the parties is deemed as one for the performance of services or as a contract for the sale of goods, the plaintiff’s action was timely commenced (see, Bulova Watch Co. v Celotex Corp., 46 NY2d 606, 611; Scott & Son v American Bldgs. Co., 93 AD2d 987). Thompson, J. P., Sullivan, Miller, Ritter and Santucci, JJ., concur.