Moultrie v Haban Constr. Co.

[*1] Moultrie v Haban Constr. Co. 2005 NY Slip Op 51477(U) [9 Misc 3d 127(A)] Decided on September 16, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 16, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PATTERSON, J.P., RIOS and BELEN, JJ.
2004-1479 Q C

Wanda Moultrie and ANNA MOULTRIE, Respondents,

against

Haban Construction Co., DADA INC. , HABAN BOB VAFAI a/k/a DUNDEE, Appellants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Steven S. Gottlieb, J.), entered June 17, 2004. The order denied defendants' motion for summary judgment dismissing the complaint.

Order unanimously modified by granting defendants' motion for summary judgment to the extent of dismissing the complaint as against defendants Haban Construction Co. and Haban Bob Vafai a/k/a Dundee and dismissing the cause of action sounding in breach of the housing merchant implied warranty as against defendant Dada Inc.; as so modified, affirmed without costs.

Plaintiffs commenced this action for damages due to the alleged failure of defendants to make repairs, breach of warranty and defective construction of a three-family residence purchased for lease. The contract of sale was entered into between plaintiffs as purchasers and defendant Dada Inc. as seller. Although, plaintiff alleged facts which, if true, may set forth the basis in equity to allow piercing of the corporate veil, the Civil Court lacks the authority to grant said relief (Jackson v Trapp, 3 Misc 3d 139[A], 2004 NY Slip Op 50577[U] [App Term, 2d & 11th Jud Dists]). Thus, the complaint must be dismissed as against defendants Haban [*2]Construction Co. and Haban Bob Vafai a/k/a Dundee.

Article 36-B of the General Business Law, entitled Warranties on Sale of New Homes (General Business Law §§ 777-777-b), is the full substitute for the antecedent housing merchant implied warranty (see Fumarelli v Marsam Dev., 92 NY2d 298, 302, 304-305 [1998]). Section 777 (5) of the General Business Law excludes multiple residences and dwellings constructed for lease from coverage under the housing merchant implied warranty (General Business Law § 777-a). Thus, plaintiffs' cause of action based on breach of the housing merchant implied warranty should have been
dismissed as against the seller, Dada Inc. As to the remaining causes of action, there are issues of fact which preclude the granting of summary judgment (see CPLR 3212 [b]).
Decision Date: September 16, 2005