Opinion
004677/05.
Decided May 24, 2006.
Carman, Callahan Ingham, LLP, Farmingdale, NY, Attorneys for Plaintiff.
Segal McCambridge Singer Mahoney, Ltd., New York, NY, Attorneys for Defendant Boat-N-RV Warehouse.
Motion by defendant Boat-N-RV Warehouse (Boat-N-RV) for summary judgment dismissing the complaint as to said defendant pursuant to CPLR 3212 and/or CPLR 3211(a)(7) is granted as hereinafter provided.
In this action, plaintiff Progressive Insurance Company (Progressive) seeks economic damages against defendant Boat-N-RV for subrogation of an insurance claim it paid its insured, Robert Dawson, in the amount of $91,622.98, as a result of fire damage sustained to a 2002 Holiday Rambler Ambassador motor home Mr. Dawson purchased from defendant Boat-N-RV. Defendant contends that the causes of action set forth in the complaint sounding in negligence, breach of express and implied warranties, strict liability and res ipsa loquitor cannot be sustained where, as here, the seller disclaims all warranties. Although plaintiff counters that its claims against defendant Boat-N-RV are based upon Boat-N-RV's particular negligence in failing to properly service the subject vehicle, claims for negligent repair and service of the subject vehicle and breach of the service contract between plaintiff's subrogor and defendant Boat-N-RV's, are not present in the complaint. Rather, they are alleged for the first time in the bill of particulars.
As argued by defendant Boat-N-RV, a bill of particulars may not be used to allege a new theory of recovery not originally asserted in the complaint ( Linker v. County of Westchester, 214 AD2d 652 [2nd Dept. 1995]). A bill of particulars is not itself a pleading ( Melino v. Tougher Heating Plumbing Co., Inc., 23 AD2d 616, 617 [3rd Dept. 1965]), and generally may not be employed to supply allegations that are missing from the complaint. Nor may a bill of particulars be used to add or substitute a new theory or cause of action or defense ( Willinger v. Town of Greenburgh, 169 AD2d 715 [2nd Dept. 1991]; Mavroudis v. State Wide Ins. Co., 102 AD2d 864 [2nd Dept. 1984]). The allegations regarding defendant Boat-N-RV's alleged breach of service contract and negligent repair/service of the subject vehicle were raised for the first time in plaintiff's opposition papers to defendant Boat-N-RV's dismissal motion and in the bill of particulars served concurrently therewith on March 29, 2006.
A fair reading of the complaint itself establishes that the complaint's gravamen is that the subject vehicle was negligently manufactured, sold and distributed in a dangerous and improper manner with latent defects not observable to the user and that the fire damage was the result of a manufacturer's defect in the vehicle.
As a general rule where a product fails to perform as promised due to negligence in either the manufacturing or installation process, a plaintiff is precluded from recovering tort damages for its economic loss ( Schiavone Constr. Co. v. Elgood Mayo Corp., 45 NY2d 667). The economic loss rule provides that where only economic loss with respect to a product itself is alleged, and the underlying transaction is a sale of goods, the purchaser is limited to its contractual remedies and may not maintain the traditional tort causes of action of negligence or strict products liability ( AKV Transport, Inc. v. Syosset Truck Sales, Inc., 24 AD3d 833, 835 [3rd Dept. 2005]). According to plaintiff's expert, the defect at issue herein goes back to the time of the delivery of the vehicle to plaintiff's subrogor. The expert opines as follows:
"The origin of the fire was located at the open end of the cooper tube extending from the rear of the Norcold refrigerator on the exterior of the motorhome. The fire was caused by the ignition of LPG that was flowing from an open-ended copper tube that was disconnected from the regulator valve of the refrigerator. The gas was ignited by an available ignition source while the motorhome was running and when the heater had been turned on. The gas ignited at the tube and burned upward and outward from behind the refrigerator.
The fire was caused by the ignition of gas as a result of the open-ended LPG tube extending from the refrigerator. It is evident that the copper tubing had been disconnected from the regulator valve sometime prior to the insured's arrival at Cummings Northeast to pick up the vehicle.
Mr. Dawson reported that on numerous prior occasions dating back to when he purchased the vehicle, the refrigerator never worked using the propane gas. Additionally, the propane gas alarm sounded on each occasion that the motorhome was used. It is most probable that the LPG cooper tube was disconnected from the Norcold refrigerator when Mr. Dawson originally purchased the motorhome."
Under the circumstances extant, where, inter alia, the complaint fails to assert a cause of action for breach of service contract and/or negligent repair and service, and where plaintiff cannot sustain a cause of action for breach of warranty given Mr. Dawson's acknowledged disclaimer of all warranties, express or implied, defendant Boat-N-RV's motion for summary judgment dismissing plaintiff's complaint must be granted.
Defendant Boat-N-RV cannot be held liable under a theory of negligence for a defectively installed product at delivery pursuant to the economic loss rule and the holdings of AKV Transport, Inc. v. Syosset Truck Sales, Inc., supra at p. 835 and Bristol-Myers Squibb, Indus. Div. v. Delta Star, Inc., 206 AD2d 177, 179 [4th Dept. 1994].
While a pleading's defects may be overlooked where admissible evidence is provided to establish the existence of an unpleaded claim ( Alvard and Swift v. Muller Construction Co., 46 NY2d 281), plaintiff's submission is, in any event, insufficient ( Id.). Mere conclusory assertions, devoid of evidentiary facts, are insufficient to defeat a motion for summary judgment, as is reliance on surmise, conjecture or speculation ( Grullon v. City of New York, 297 AD2d 261, 263-264 [1st Dept. 2002]).
Pursuant to the Preliminary Conference Order dated December 20, 2005, plaintiff was directed to serve notices for discovery and inspection on or before February 11, 2006. Plaintiff's belated hope that discovery at this juncture would lead to evidence vis a vis unpleaded causes of action is an insufficient basis to deny defendant Boat-N-RV's motion for summary judgment dismissing the complaint.
This decision constitutes the order of the court.