Opinion
April 6, 2000.
Order, Supreme Court, New York County (Edward Lehner, J.), entered March 10, 1999, which denied defendants-appellants' motions to dismiss the complaint as time-barred, for leave to amend an answer to assert the defense that the action was time-barred, and for summary judgment dismissing the complaint, unanimously modified, on the law, and said motions granted to the extent of dismissing the plaintiff's fourth, thirty-first and thirty-second causes of action, and otherwise affirmed, without costs.
John P. Margand, for plaintiff-respondent.
David S. Frydman, Brian J. Isaac, Vanessa Corchia, Brendan T. Fitzpatrick, for defendants-appellants.
ROSENBERGER, J.P., WILLIAMS, TOM, RUBIN, BUCKLEY, JJ.
Plaintiff's fourth cause of action premised upon an alleged warranty of habitability by defendant condominium corporation should have been dismissed since it is clear that defendant condominium did not extend a warranty of habitability to the individually owned unit in question (see, Mailman v. Abbady, 216 A.D.2d 115), and, in any event, would have made no such warranty to plaintiff subtenant, with whom it had "neither a contractual agreement nor landlord-tenant relationship"; (see, Wright v. Catcendix Corp., 248 A.D.2d 186). Plaintiff's 31st and 32nd causes of action alleging breaches of warranties of merchantability and fitness by defendant air-conditioning maintenance contractor Arista should have been dismissed as well, since that defendant was not a warrantor of the goods it merely serviced (see, Vernon v. Potamkin Cadillac Corp., 118 A.D.2d 698, 700). Plaintiff's remaining causes were properly upheld as against appellants' claims that they were time-barred, since plaintiff's first-commenced action was not a nullity (cf., Halliday v. Town of Halfmoon, 235 A.D.2d 709). We have considered appellants' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.