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Comsewogue Union Free Sch. v. Allied-Trent [2d Dept 2000

Appellate Division of the Supreme Court of New York, Second Department
May 8, 2000
272 A.D.2d 360 (N.Y. App. Div. 2000)

Opinion

Argued March 9, 2000.

May 8, 2000.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Hall, J.), dated April 19, 1999, as granted that branch of the motion of the defendant, W.R. Grace Co., which was for summary judgment dismissing the complaint insofar as asserted against it.

Lamb Barnosky, LLP, Melville, N.Y. (Joel M. Markowitz, Catherine Healy Kanzler, and Robert H. Cohen of counsel), for appellant.

Flemming, Zulack Williamson, LLP, New York, N.Y. (Cathi A. Hession, James B. Eisenberg, and Christina M. Rackett of counsel), for respondent.

FRED T. SANTUCCI, J.P., DANIEL W. JOY, THOMAS R. SULLIVAN, MYRIAM J. ALTMAN, JJ.


DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

In 1990 two school buildings within the plaintiff Comsewogue Union Free School District were re-roofed utilizing insulation material manufactured by the defendant W.R. Grace Co. (hereinafter Grace). After the roofs allegedly developed leaks and other problems, the plaintiff commenced this lawsuit in 1997 against Grace, among others.

The Supreme Court correctly concluded that the lack of contractual privity between the plaintiff and Grace precluded any claim for damages based upon strict liability or breach of implied warranty (see, Jaffee Assocs. v. Bilsco Auto Serv., 58 N.Y.2d 993; County of Chenango Indus. Dev. Agency v. Lockwood Greene Engrs., Inc., 114 A.D.2d 728). Furthermore, under the circumstances of this case, the plaintiff cannot recover in tort against Grace (see, Borce Leasing Corp. v. General Motors Corp., 84 N.Y.2d 685; cf., Sommer v. Federal Signal Corp., 79 N.Y.2d 540). The plaintiff's cause of action to recover damages for breach of express warranty based upon representations made in Grace's product literature was time-barred at the time this action was commenced since the representations do not "explicitly extend to future performance" (UCC 2-725; see, Parrino v. Sperling, 232 A.D.2d 618).

SANTUCCI, J.P., JOY, SULLIVAN and ALTMAN, JJ., concur.


Summaries of

Comsewogue Union Free Sch. v. Allied-Trent [2d Dept 2000

Appellate Division of the Supreme Court of New York, Second Department
May 8, 2000
272 A.D.2d 360 (N.Y. App. Div. 2000)
Case details for

Comsewogue Union Free Sch. v. Allied-Trent [2d Dept 2000

Case Details

Full title:Comsewogue Union Free School District, appellant, v. Allied-Trent Roofing…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 8, 2000

Citations

272 A.D.2d 360 (N.Y. App. Div. 2000)
707 N.Y.S.2d 657

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