Opinion
2001-09474
Argued November 7, 2002.
December 2, 2002.
In an action, inter alia, to recover damages for breach of contract and breach of warranty, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Barone, J.), entered October 10, 2001, which denied their motion to discontinue their causes of action alleging breach of warranty and granted the cross motion of the defendant Horton Building Corp. pursuant to CPLR 3211(a)(7) to dismiss the seventh, eighth, ninth, and twelfth causes of action.
Friedman Harfenist, Lake Success, N.Y (Steven Jay Harfenist and Heather L. Reulbach of counsel), for appellants.
Marin Goodman LLP, New York, N.Y. (Richard P. Marin and Alyson M. Sciacca of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, DANIEL F. LUCIANO, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The Supreme Court properly granted those branches of the cross motion of the defendant Horton Building Corp. which were to dismiss the causes of action sounding in breach of express and implied warranties, since the plaintiffs failed to timely file a notice of warranty claim pursuant to the limited warranty between them and Horton Building Corp. Further, since the limited warranty excluded any common-law implied warranty, that branch of the cross motion which was to dismiss the seventh cause of action sounding in common-law breach of contract was also properly granted (see Hirshorn v. Little Lake Estates, 251 A.D.2d 377, 378; Fumarelli v. Marsam Dev., 238 A.D.2d 470, affd 92 N.Y.2d 298).
The plaintiffs' remaining contentions are without merit.
ALTMAN, J.P., S. MILLER, LUCIANO and RIVERA, JJ., concur.