Opinion
February 2, 1990
Appeal from the Supreme Court, Chautauqua County, Ricotta, J.
Present — Dillon, P.J., Callahan, Pine, Balio and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: In 1971, defendant Arthur G. McKee Co. agreed to design and construct a pet food plant for plaintiff. Defendant Industrial First, Inc. entered into a subcontract with McKee to build the roof of the plant pursuant to specifications agreed upon by plaintiff and McKee. Defendants GAF and Silbrico agreed to furnish Industrial First with roofing materials and insulation for construction of the roof. Water leaks were detected shortly after the completion of construction. Plaintiff commenced this action to recover the cost of replacing the roof, the expenses of interim roof repairs, the expense of hiring consulting engineers to assess the extent and cause of the leaks, and damages for injury to its plant. The causes of action against GAF and Silbrico seek recovery on theories of negligence, strict product liability, and breach of implied warranty. GAF and Silbrico moved for summary judgment dismissing those claims and the cross claims of other defendants.
Supreme Court erred in denying the original motions of Silbrico Corporation and GAF Corporation for summary judgment dismissing the complaint against them. Plaintiff's negligence and strict liability claims against manufacturers of roofing materials for economic loss suffered directly or indirectly by reason of a defective product are not actionable (see, Schiavone Constr. Co. v Mayo Corp., 56 N.Y.2d 667, revg 81 A.D.2d 221, 227-234 on dissenting opn; County of Chenango Indus. Dev. Agency v Lockwood Greene Engrs., 114 A.D.2d 728, appeal dismissed 67 N.Y.2d 757; Hemming v Certainteed Corp., 97 A.D.2d 976, appeal dismissed 61 N.Y.2d 758; Queensbury Union Free School Dist. v Walter Corp., 94 A.D.2d 834). Moreover, absent privity, plaintiff cannot recover damages for economic loss based upon breach of implied warranty (see, Coffey v United States Gypsum Co., 149 A.D.2d 960, 961, lv denied 74 N.Y.2d 610). Because all of the causes of action asserted against GAF and Silbrico should have been dismissed on the merits, we do not reach the issues whether plaintiff should have been granted leave to amend its complaint to separately state causes of action for negligence, strict product liability and breach of implied warranties or whether the claims against GAF and Silbrico were time barred. Those issues are moot.
The second and third causes of action of the complaint allege that Industrial First was negligent in its installation of the roof and that it breached the subcontract by failing to install a roof that met contract specifications. Industrial First sought summary judgment dismissing these claims upon the grounds that the so-called negligence cause of action was time barred and plaintiff could not sue for breach of the subcontract due to lack of privity. Supreme Court properly denied summary judgment. A cause of action seeking damages for economic loss occasioned by the negligent performance of a contract is governed by the six-year contract Statute of Limitations (see, Sears, Roebuck Co. v Enco Assocs., 43 N.Y.2d 389, 393; Banks v DeMillo, 145 A.D.2d 903), and commencement of this action within six years of contract completion was timely. Plaintiff adequately demonstrated that the parties to the subcontract intended to benefit plaintiff directly. The subcontract contained an express agreement by Industrial First to be bound by the terms and conditions of McKee's contract with plaintiff. Additionally, all warranties extended by Industrial First to McKee also were expressly extended to plaintiff, and Industrial First agreed to indemnify plaintiff for damages arising out of its performance of the subcontract. Plaintiff, therefore, was entitled to sue as a third-party beneficiary (see, Bethpage Water Dist. v Hendrickson Bros., 138 A.D.2d 660; Charlebois v Weller Assocs., 136 A.D.2d 214, 217, affd 72 N.Y.2d 587).