Raising UCC 2-607 notice at SJ Forum

[JA_legal]

In Town of Hooksett School Dist. v. WR Grace and Co., (D.N.H. 1984) the court dismissed the warranty claims at the MTD level since notice was never given. “[N]otice is a prerequisite to maintaining a warranty action under the UCC."

HOWEVER 10 years later:

In Dudley v. Business Express, Inc., (D.N.H. 1994), the court held that determining whether notice was sufficient under 2-607 notice issue in a MTD was too early as it was an issue of fact for the jury. (the court stated “all defendants allege that plaintiffs either failed to give notice or gave insufficient notice.”)

Also here are cases where a MTD was never filed:

In Cheshire Med. Ctr. V. W.R. Grace & Co., (D.N.H. 1991) the issue was raised at the SJ stage. However, a MTD was never filed previously. The court dismissed the claims as plaintiff never gave notice of its breach.

In Precourt v. Fairbank Recontruct. Corp., (D.N.H. 2012) the issue was raised at the SJ stage as well and no MTD has been previously filed. The court ruled that “whether defendants received sufficient notice is ordinarily a question of fact to be determined by a jury.”


MY QUESTION: Given the above precedent, would a defendant be able to file a MTD and not include the notice requirement under 2-607 in the MTD, reserve it as a defense in an answer and then raise it at SJ?