Summary
explaining that an express warranty for future performance “can stem from the literature disseminated by the manufacturer to the medical profession.”
Summary of this case from Gelber v. Stryker Corp..Opinion
May 4, 1993
Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.).
While an action for breach of implied or express warranty must be commenced within four years after the cause of action has accrued (UCC 2-725), which would ordinarily be the date the party charged tenders delivery of the product (Heller v U.S. Suzuki Motor Corp., 64 N.Y.2d 407, 411), an exception is made where the warranty explicitly extends to future performance of the goods, in which event the cause of action accrues when the breach is or should have been discovered (see, Mittasch v Seal Lock Burial Vault, 42 A.D.2d 573). Such an express warranty for future performance "can stem from the literature disseminated by the manufacturer to the medical profession" (Wiltshire v Robins Co., 88 A.D.2d 1097). The court properly found that the question of whether defendant had expressly warranted future performance was a question of fact for the jury, and that plaintiff had sufficiently pleaded a claim for breach of express warranty since "[m]odern pleading rules are `designed to focus attention on whether the pleader has a cause of action rather than on whether he has properly stated one'" (Rovello v Orofino Realty Co., 40 N.Y.2d 633, 636).
Concur — Milonas, J.P., Rosenberger, Ellerin and Kupferman, JJ.