Opinion
December 17, 1982
Appeal from the Supreme Court, Genesee County, Morton, J.
Present — Simons, J.P., Hancock, Jr., Callahan, Doerr and Moule, JJ.
Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Welty-Way Products, Inc. (Welty-Way), third-party defendant, appeals from so much of an order as denied its motion to dismiss (CPLR 3211, subd [a], par 7) the first, second and fourth causes of action of the third-party complaint. The order granted the motion with respect to the third cause of action with leave to replead (CPLR 3211, subd [e]). Third-party plaintiff, Stone Conveyor, Inc. (Stone), does not cross-appeal. In the main action, Manufacturers and Traders Trust Co. (Manufacturers) sues Stone for payments due under an equipment lease assigned to Manufacturers by Traders Leasing Corp. (Traders) wherein Stone leased from Traders equipment manufactured by Welty-Way. Whether the transaction was a sale by Welty-Way to Traders and an independent lease by Traders to Stone or a sale by Welty-Way to Stone with financing in the form of a lease arrangement provided by Traders is in dispute. Stone in its third-party action alleges that the equipment was defective and sets forth claims for breach of express warranty (first cause of action), breach of implied warranties of merchantability and fitness (second cause of action), and negligence in the nature of strict products liability (fourth cause of action). The first and second causes of action are deficient because they fail to allege privity of contract between Welty-Way and Stone, an essential element for causes of action in express and implied warranty (see Martin V Dierck Equip. Co., 43 N.Y.2d 583, 589). The fourth cause of action fails to show that the defect caused "physical damage, presumably due to an accident, to either persons or property" ( Schiavone Constr. Co. v Elgood Mayo Corp., 81 A.D.2d 221, 228, revd on dissent per Silverman, J., 56 N.Y.2d 667; see Dudley Constr. v Drott Mfg. Co., 66 A.D.2d 368, 372-375). Causes of action one, two and four are dismissed. Based on the affidavits and exhibits submitted in opposition to the dismissal motion, we grant the requested leave to replead (CPLR 3211, subd [e]) with respect to all three causes of action (see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:64, p 68).