Opinion
July 12, 1991
Appeal from the Supreme Court, Monroe County, Curran, J.
Present — Doerr, J.P., Green, Pine, Lawton and Davis, JJ.
Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied defendant's motion to dismiss plaintiff's fourth and eighth causes of action. In its complaint alleging strict products liability, plaintiff alleges that a defective electrical baseboard heater manufactured by defendant caused a fire which resulted in extensive structural damage to plaintiff's recreation hall. Contrary to defendant's contention, plaintiff does not seek to recover economic loss only (see, Schiavone Constr. Co. v Mayo Corp., 56 N.Y.2d 667, revg on dissenting opn 81 A.D.2d 221, 228). The cases upon which defendant relies cover a different situation entirely — the situation where a product fails to perform adequately, resulting in economic loss only. In those cases, courts have limited plaintiff to available contract remedies (see, Ralston Purina Co. v McKee Co., 158 A.D.2d 969; Richman v Albert, 127 A.D.2d 992, lv denied 70 N.Y.2d 745; Butler v Caldwell Cook, 122 A.D.2d 559; County of Chenango Indus. Dev. Agency v Lockwood Greene Engrs., 114 A.D.2d 728, appeal dismissed 67 N.Y.2d 757). Such is not the case here.
Supreme Court also properly denied defendant's motion to dismiss plaintiff's breach of warranty claim as time-barred. Plaintiff's claim, which sounds in tort, arose on the date of the injury (see, Victorson v Bock Laundry Mach. Co., 37 N.Y.2d 395, 402-404). Plaintiff's action, commenced within three years of the date of the injury, was timely (see, Heller v U.S. Suzuki Motor Corp., 64 N.Y.2d 407, 412).