The court’s opinion dismissing the third and fourth causes of action for breach of contract is grounded on failure to give written notice of claims of individual defects. However, this avoids the basic contention of the complaint, of which individual oral claims of defect are only evidence, that, in addition to the defendant having actual knowledge in the premises, the products were warranted by contract to be of merchantable quality and in accordance with the specifications set forth, which, it is alleged, they were not. Also, that, in further breach, they did not have a warranted two-year "shelf life”; obviously a latent defect. (Wilson Trading Corp. v David Ferguson Ltd. 23 NY2d 398.)
I would affirm the court at Special Term and leave all of the issues for trial.
Birns, J., concurs with Yesawich, J.; Capozzoli and Lane, JJ., concur in result; Kupferman, J. P., dissents in part in an opinion.
Order, Supreme Court, New York County, entered on May 1, 1975, modified, on the law, and the third and fourth causes of action dismissed in their entirety, and severed, and the order otherwise affirmed, without costs and without disbursements.