Opinion
2013-11-18
WASHINGTON APTS., L.P., Plaintiff, v. OETIKER, INC.; Savarino Construction Corp. f/k/a Savarino Construction Services Corp.; Jim Ando Plumbing, Inc.; and VP Supply Corp., Defendant.
Brian D. Gwitt, Esq., Damon & Morey, LLP, attorneys for plaintiff. William J. Brennan, Esq., Sedgwick, LLP, attorneys for defendant, Oetiker, Inc.
Brian D. Gwitt, Esq., Damon & Morey, LLP, attorneys for plaintiff. William J. Brennan, Esq., Sedgwick, LLP, attorneys for defendant, Oetiker, Inc.
Matthew D. Miller, Esq., Rupp, Baase, Pfalzgraf, Cunningham & Coppola, LLC, attorneys for defendant, Jim Ando Plumbing, Inc.
TIMOTHY J. WALKER, J.
Defendant Oetiker, Inc. (“Oetiker”) moves, pursuant to CPLR 2221, for leave to renew the Court's denial of Oetiker's previous motion to dismiss (the “Prior Motion”). Upon the granting of such leave, Oetiker seeks an Order dismissing Plaintiff's claims against it as a matter of law on the grounds that the First Amended Complaint fails to state a cause of action against it. In support of its motion for leave to renew, Oetiker alleges that there has been a change in the law that would change the Court's prior determination (the “Prior Determination”). This matter is assigned to the Commercial Division for the Eighth Judicial District. At the time of the Prior Motion, the Hon. John A. Michalek was assigned to the Commercial Division, as Presiding Justice. The motion to renew, while submitted to the Commercial Division, will be determined by this Court as the currently assigned Justice [ see, In Re New York State Urban Development Corp., 85 A.D.3d 1723, 926 N.Y.S.2d 246 (4th Dept.2011) (analyzing CPLR 2221(a) and 2221(b)) ]. Plaintiff and Defendant Jim Ando Plumbing Co., Inc. (“Ando”) oppose the motion for leave to renew and, in the event leave is granted, urge the Court to adhere to the Prior Determination.
FACTS RELEVANT TO THE INSTANT APPLICATION
In order to properly frame the issues before the Court, a brief recitation of the facts, as alleged in Plaintiff's First Amended Verified Complaint, and upon which the Prior Motion was based, is in order. It is well established that in connection with a motion to dismiss, a court is limited “to an examination of the pleadings to determine whether they state a cause of action. Further, [a court] must accept facts alleged as true and interpret them in the light most favorable to plaintiff” [Miglino v. Bally Total Fitness of Greater New York, 20 N.Y.3d 342, 961 N.Y.S.2d 364, 985 N.E.2d 128 (2013) ].
Here, Plaintiff has alleged product liability and negligence claims against Oetiker. These claims are based on the alleged failure of various plumbing clamps installed as part of a new plumbing system, during a total renovation of an apartment building located at 499–501 Washington Street, Buffalo, New York (the “Renovated Premises”).
At all times relevant, Plaintiff was the owner of the Renovated Premises. On or about January 30, 2004, Plaintiff entered into an agreement with Defendant Savarino Construction Corp. f/k/a Savarino Construction Services Corp. (“Savarino”) to act as general contractor for the renovation of the Renovated Premises (the “Project”). In turn, Savarino entered into an agreement with Ando, a plumbing contractor, to furnish materials and labor necessary for the installation of the plumbing system for the Project.
Relevant here, Plaintiff alleges that the plumbing system was “designed, in whole or in part, by [Ando] and/or Savarino”; that the plans for the plumbing system “called for a cross-linked polyethelene (“PEX”) plumbing system (the “PEX Plumbing System”), which typically uses clamps to secure hoses over fittings”; and that Ando purchased 1,000 stainless steel “ear clamps” (also known as “cinch clamps”) for use in the PEX Plumbing System [the “Clamps”] from Defendant VP Supply Corp. (“VP Supply”) [First Amended Verified Complaint, at ¶ ¶ 7–12].
Plaintiff alleges further that the Clamps were manufactured by Oetiker, and were subsequently incorporated into the PEX Plumbing System during the Project.
Plaintiff alleges numerous separate failures of the Clamps, “resulting in failure of the plumbing joint for each instance and causing serious flooding”, with resulting damage to the Renovated Premises' elevator system, fire alarm system, cabinetry, ceiling tiles and carpeting—all installed during the Project [First Amended Verified Complaint at ¶¶ 15–19]. Plaintiff alleges further that the Clamps “contained manufacturing and/or design defects that made the Clamps predisposed to failure by rupturing; ... are unreasonably dangerous and unfit for their intended use in PEX plumbing systems; [and that the] Clamps ruptured at the [Renovated] Premises causing the [PEX Plumbing System] to fail ... causing water to flood the [Renovated] Premises” [First Amended Verified Complaint at ¶¶ 26–29; 34–36].
DISCUSSION
Motions for leave to renew are left to the sound discretion of the trial court [ see, e.g., Caryl S. v. Child & Adolescent Treatment Services, Inc., 238 A.D.2d 953, 661 N.Y.S.2d 168 (4th Dept.1997) ]. Renewal may be based upon (relevant here) “a change in the law that would change the prior determination” [CPLR 2221(e)(2) ]. A clarification of decisional law is a sufficient change in the law to support renewal [CPLR 2221(e)(2); Roundabout Theatre Co. v. Tishman Realty & Constr. Co., 302 A.D.2d 272, 756 N.Y.S.2d 12 (1st Dept.2003) ].
Likewise, if a decision relied upon by a court in its prior determination was either controlling or essential to that prior determination, leave to renew should be granted [ see, e.g., Caryl S., supra].
A development in the case law of another department—decisional law that is merely persuasive and not binding-constitutes a “change in the law” for purposes of a motion to renew when, as here, the court cites to, and relies on a subsequently reversed decision from that other department [City of New York v. New York State Public Employment Relations Board, 103 A.D.3d 145, 956 N.Y.S.2d 689 (3rd Dept.2012) ].
By way of a decision read into the record on August 9, 2012 (the “August Decision”), and incorporated into an order granted on September 13, 2012, the Court denied the Prior Motion, finding that the “economic loss doctrine” did not preclude recovery in tort under the circumstances of this case. The Court explained its decision by citing to, and adopting the reasoning of the Supreme Court, Nassau County, in Archstone v. Tocci Building Corp. of New Jersey, Inc., 2011 WL 289931 (January 19, 2011), stating that it was “... one case directly on point ...” [August Decision, at p. 6].
Subsequent to the August Decision, the Appellate Division, Second Department reversed the Archstone trial court, and rejected the reasoning relied upon by the Court in the August Decision [Archstone v. Tocci Building Corp. of New Jersey, Inc., 101 A.D.3d 1059, 956 N.Y.S.2d 496 (2nd Dept.2012) ].
In this Court's opinion, this constitutes a change in the law that (based on the record in this matter) was essential to, and would have changed the August Decision. Thus, this Court grants leave to renew.
Turning to the merits of the motion to dismiss, courts will apply the economic loss doctrine to preclude tort/products liability claims at the pleadings stage [ see, e.g., Hemming v. Certainteed Corp., 97 A.D.2d 976, 468 N.Y.S.2d 789 (4th Dept.1983); Arell's Fine Jewelers Inc. v. Honeywell, Inc., 170 A.D.2d 1013, 566 N.Y.S.2d 505 (4th Dept.1991); and Butler v. Caldwell & Cook, Inc., 122 A.D.2d 559, 561, 505 N.Y.S.2d 288 (4th Dept.1986) ].
The New York Court of Appeals has limited tort recovery based upon product failure by holding that when a plaintiff suffers damages resulting from a non-accidental cause, such as deterioration or breakdown of the product itself, the injuries are properly characterized as “economic loss” and the plaintiff is relegated to contractual damages [Schiavone Constr. Co. v. Mayo Corp., 56 N.Y.2d 667, 451 N.Y.S.2d 720, 436 N.E.2d 1322 (1982)reversing81 A.D.2d 221, 439 N.Y.S.2d 933 (1st Dept.1981) ]. Pursuant to the economic loss doctrine, “a plaintiff may not recover in tort against a manufacturer for economic loss that is contractually based, whether due to injury to the product itself or consequential losses flowing therefrom” [Hodgson, Russ, Andrews, Woods & Goodyear, LLP v. Isolatek International Corporation, 300 A.D.2d 1051, 752 N.Y.S.2d 767 (4th Dept.2002)quoting Bocre Leasing Corp. v. General Motors Corp. ( Allison Gas Turbine Div.), 84 N.Y.2d 685, 621 N.Y.S.2d 497, 645 N.E.2d 1195 (1995) ]. In other words, when a product fails to perform as promised because of negligence or product defect, no recovery for purely economic loss is allowed as a matter of tort law, because such claims are “fundamentally and in all relevant respects, essentially contractual, product-[failures]” [ Bocre Leasing, supra ]. The economic loss doctrine reflects the principal that defects related to the quality of the product are relevant to the parties' expectancies, such as loss of bargain, and are not recoverable in tort, relegating these claims “to the law of contracts and warranty which governs the economic relations between suppliers and consumers of goods” [Hemming v. Certainteed Corporation, 97 A.D.2d 976, 468 N.Y.S.2d 789 (4th Dept.1983) ].
However, an exception to the economic loss doctrine exists when a defective product causes damage to “other property” [ Id.; see also, Hodgson, Russ, supra.; Saratoga Fishing Co. v. J.M. Martinac & Co., 521 U.S. 1136, 118 S.Ct. 3, 138 L.Ed.2d 1037 (1997); Syracuse Cablesystems v. Niagara Mohawk, 173 A.D.2d 138, 578 N.Y.S.2d 770 (4th Dept.1991); and Electrical Waste Recycling Group, Ltd. v. Andela Tool & Machine, Inc., 107 A.D.3d 1627, 968 N.Y.S.2d 765 (4th Dept.2013) ].
In this case, Plaintiff has alleged that the Clamps failed to perform their intended purpose, causing damage to the Renovated Premises. The claims (and resulting injury and related damages) asserted in this case are similar to those asserted in Archstone (artificial stone cladding system failure, causing water intrusion and related damage to newly constructed building); Weiss v. Polymer Plastics Corp., 21 A.D.3d 1095, 802 N.Y.S.2d 174 (2nd Dept.2005) (siding system failure, causing water infiltration and related damage to siding system, as well as plywood substrate), Bocre Leasing (engine compressor blade failure, causing helicopter to stall and crash, damaging only the helicopter), Hemming (siding systems failure, causing water infiltration and related damage to siding systems, as well as consequential damages to plaintiffs' newly constructed homes), and Bristol–Myers Squibb Indus. Div. v. Delta Star, 206 A.D.2d 177, 620 N.Y.S.2d 196 (4th Dept.1994) (transformer failure, causing power loss to manufacturing facility and related damage to batch processed product).
Finally, it is irrelevant whether the product failure is the result of a faulty installation, or a breakdown of the product itself [ Bristol–Myers, supra ]. The economic loss doctrine reflects the principle that damages arising from the failure of the bargained-for consideration to meet the expectations of the parties are recoverable in contract, not tort [ Id.]. Indeed, “tort law should not be bent so far out of its traditional progressive path and discipline by allowing tort lawsuits where the claims at issue are, fundamentally and in all relevant respects, essentially contractual, product-failure controversies” [Bocre Leasing, 84 N.Y.2d at 694, 621 N.Y.S.2d 497, 645 N.E.2d 1195].
Accordingly, it is hereby
ORDERED, that Defendant Oetiker, Inc.'s motion for leave to renew is granted; and it is further
ORDERED, that upon renewal, Defendant Oetiker Inc.'s motion to dismiss is granted. This constitutes the Decision and Order of this Court. Submission of an order by the Parties is not necessary. The delivery of a copy of this Decision and Order by this Court shall not constitute notice of entry.