Opinion
December 14, 1984
Appeal from the Supreme Court, Oneida County, Hayes, J.
Present — Hancock, Jr., J.P., Doerr, Denman, Boomer and O'Donnell, JJ.
Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: Special Term erred in denying defendant Rusmar Sales Company's motion for summary judgment. There was no privity between defendant Rusmar and plaintiff and absent privity there can be no recovery for breach of implied warranty (see Uniform Commercial Code, §§ 2-314, 2-315; Jaffe Assoc. v. Bilsco Auto Serv., 58 N.Y.2d 993, affg 89 A.D.2d 785; Pronti v. DML of Elmira, 103 A.D.2d 916, 917; Hole v. General Motors Corp., 83 A.D.2d 715, 716). The motion of defendant Gitzen Companies, Incorporated was properly denied, however, inasmuch as there was privity. The record establishes that Gitzen purchased the product for its own account and resold it to the general contractor for use in plaintiff's building. While the invoice lists the general contractor as purchaser it is evident that the contractor purchased the product, not for its own account, but as agent for the owner. Contrary to plaintiff's argument on appeal, we find no basis in the record for a claim of breach of express warranty against Rusmar or Gitzen. As contrasted with Randy Knitwear v American Cyanamid Co. ( 11 N.Y.2d 5), there is no allegation in the complaint of any specific representation in the sales literature upon which plaintiff relied.
Additionally, Special Term erred by granting plaintiff leave to amend its complaint to assert a cause of action based on negligence. A claimant seeking to recover for economic loss resulting from the nonperformance of a product is relegated to the law of contracts and may not sue in negligence ( Antel Oldsmobile-Cadillac v. Syrus Leasing Co., 101 A.D.2d 688, 689; Mid-Hudson Mack v. Dutchess Quarry Supply Co., 99 A.D.2d 751, 753; Hemming v. Certainteed Corp., 97 A.D.2d 976, app dsmd 61 N.Y.2d 758; Estruch v. Volkswagenwerk, AG., 97 A.D.2d 977).