Summary
affirming dismissal of complaint because roofing materials company had only warrantied the watertightness of their product and therefore the limited remedy, return of the purchase price, did not fail of its essential purpose, where plaintiffs had to fix an improper installation
Summary of this case from City of N.Y. v. Bell Helicopter Textron, Inc.Opinion
100061/11, 14612A, 590536/12, 14612
03-31-2015
The BOARD OF MANAGERS OF the A BUILDING CONDOMINIUM, et al., Plaintiffs, v. 13TH & 14TH STREET REALTY, LLC, et al., Defendants, Hudson Meridian Construction Group, LLC, sued herein as Hudson Meridian Construction Group, Defendant–Appellant, American Hydrotech, Inc., Defendant–Respondent. Hudson Meridian Construction Group, LLC, Third–Party Plaintiff, v. Demar Plumbing Corp., et al., Third–Party Defendants, Bay Restoration Corp., Third–Party Defendant–Appellant.
Marshall, Dennehey, Warner Coleman & Goggin, New York (James Freire of counsel), for Hudson Meridian Construction Group, LLC, appellant. Faust Goetz Schenker & Blee LLP, New York (Damian Fischer of counsel), for Bay Restoration Corp., appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondent.
Marshall, Dennehey, Warner Coleman & Goggin, New York (James Freire of counsel), for Hudson Meridian Construction Group, LLC, appellant.
Faust Goetz Schenker & Blee LLP, New York (Damian Fischer of counsel), for Bay Restoration Corp., appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondent.
TOM, J.P., RENWICK, DeGRASSE, MANZANET–DANIELS, CLARK, JJ.
Opinion Orders, Supreme Court, New York County (Barbara Jaffe, J.), entered September 3, 2013 and October 25, 2013, which to the extent appealed from, granted summary judgment to defendant American Hydrotech (Hydrotech) dismissing the complaint against it, unanimously affirmed, without costs.
Even if Hydrotech's motion to dismiss should not have been converted to a motion for summary judgment, dismissal of the complaint was warranted pursuant to CPLR 3211(a)(1), based on Hydrotech's unambiguous Watertightness Warranty (see Four Seasons Hotels v. Vinnik, 127 A.D.2d 310, 318, 515 N.Y.S.2d 1 [1st Dept.1987] ; see also 401 W. 14th St. Fee LLC v. Mer Du Nord Noordzee, LLC, 34 A.D.3d 294, 295, 825 N.Y.S.2d 15 [1st Dept.2006] ). The warranty expressly pertains solely to the watertightness of Hydrotech's product, which it sold to third-party defendant Bay Restoration for installation on the roof of plaintiffs' condominium, and did not pertain to any damage to the base over which the product was installed, the building structure, or any improper installation (see UCC 2–316 [1] ; see also West 63 Empire Assoc., LLC v. Walker & Zanger, Inc., 107 A.D.3d 586, 586, 968 N.Y.S.2d 455 [1st Dept.2013] ). Further, the warranty expressly limits the building owner's remedies to the repair of the product or the repayment of the original cost of the product, the latter of which Hydrotech chose to do (see UCC 2–316 [4] ). Accordingly, under the express terms of the warranty, Hydrotech's liability to plaintiffs thereunder immediately ceased upon repayment.
The limitation of remedies does not fail in its essential purpose (see UCC 2–719 [2] ), as plaintiffs received the benefit of their bargain (see Cayuga Harvester v. Allis–Chalmers Corp., 95 A.D.2d 5, 11, 465 N.Y.S.2d 606 [4th Dept.1983] ).
We note that American Hydrotech's motion called for a dismissal of the complaint only. Accordingly, the orders appealed from made no disposition of any cross claims. We therefore do not address such cross claims on this appeal.