(concurring in part and dissenting in part). I dissent and vote to reverse. I agree with the majority that the Uniform Commercial Code does not apply to a contract such as the instant one where service predominates and the provision of goods is a mere incident (see Perlmutter v. Beth David Hosp., 308 N. Y. 100, 104; Ben Constr. Corp. v. Ventre, 23 A D 2d 44; Oilheat Systems v. Spadaro, 137 Misc. 384; and see, also, North American Leisure Corp. v. A & B Duplicators, Ltd., 468 F. 2d 695 [2d Cir., 1972] ; 1 Anderson, Uniform Commercial Code [2d ed.], §§ 2-102:5, 2-105:10; 1955 Report of N. Y. Law Rev. Comm., p. 361). Contrary to the implication of the concurrence, at the relevant time, the goods involved here could not have been purchased in the general market, the plaintiff having intended and attempted to do so but failed. Indeed, *240it is clear from Anderson’s commentaries on the code that the section quoted by the concurrence- properly applies only to warranties of fitness of readily available consumer goods when such goods are used in commercial service operations, such as. beauty parlors (see, e.g., Newmark v. Gimbels,Inc., 54 N. J. 585).2 The instant contract, requiring plaintiff to “ Furnish labor, equipment and materials to install” and '' erect structural steel ’’’ (emphasis supplied), was clearly a service or construction contract and thus outside the ambit of the code. Therefore, in determining the rights and remedies of the respective parties, it is necessary to resort to case law.
Time was clearly of the essence in the original contract which expressly so provided and set the work completion date in 1968. However, compliance with that provision was waived by respondent’s failure to cancel the contract upon appellant’s nonperformance within the time limits (General Supply &. Constr. Co. v. Goelet, 241 N. Y. 28; Lawson v. Hogan, 93 N. Y. 39; Clifton Park Affiliates v. Howard, 36 A D 2d 984). Thereupon, the contract was effectively converted into one under which performance within a reasonable time was all that was required (Lawson v. Hogan, supra) although respondent was free to seek damages attributable to the delay (Mawhinney v. Millbrook Woolen Mills, 234 N. Y. 244). If performance within a reasonable time was the sole criterion, clearly such time had not expired as of the cancellation date, March 5,1969. Respondent was aware of the circumstances causing the delay — appellant’s inability to obtain State approval of the splice welds in the steel beams — and could reasonably, anticipate further delays attributable thereto. However, even if respondent’s letters of January 29 and February 11, which called upon appellant to set a completion date, are viewed as reimposing time as an essential element in the contract (see Brede v. Rosedale Terrace Co., 216 N. Y. 246, 250; Taylor v. Goelet, 208 N. Y. 253, 259; Lawson v. Hogan, supra, p. 44), nevertheless, respondent again waived compliance with that provision by failing to candel the contract after appellant’s refusal, in its letter of February 12, to set a completion date. In fact, work on the project was resumed on February 24 or 25 and the inspection of appellant’s premises by the respondent’s president on March 1,1969 indicates that ..at least as of that date, performance in the absence of a completion date was being permitted.
*241Respondent’s cancellation of the contract on March 5, 1969 came about when time was once again not of the essence, and termination, without providing a reasonable time for completion of the contract, was improper (General Supply & Constr. Co. v. Goelet, supra, pp. 36, 37; Taylor v. Goelet, supra, p. 259) though, as mentioned earlier, respondent was entitled to seek damages for the delay. Since the cancellation of the contract was wrongful, appellant is also entitled to damages for breach of contract or for the fair and reasonable value of the work performed less the value of the steel retained subject, of course, to respondent’s counterclaim.
The record is inadequate for a proper determination of appellant’s damages. However, in view of the conclusion we reach, it is clear that the damages awarded respondent were excessive. Accordingly, such damages should be reduced to the sum of $1,950 to reflect only the additional cost of paving attributable to appellant’s delay.
I would reverse and remit the matter for an assessment of appellant’s damages, said damages being subject to a setoff of $1,950 to which respondent is entitled on its counterclaim.
Herlihy, P. J., and Kane, J., concur with Reynolds, J.; Greenblott, J., concurs in a separate opinion; Cooke, J., dissents in part and concurs in part in an opinion..
Judgment modified, on the law and the facts, so as to reduce the judgment in favor of respondent to $7,378.08, and, as so modified, affirmed, without costs.
. To accept the position of the concurrence would subject all normal construction contracts to the code. While this result is not necessarily undesirable, it is one that should be reached through legislative rather than judicial action.