Abbe v BSH Home Appliances Corp.
Annotate this CaseDecided on May 30, 2007
District Court of Nassau County, First District
Herbert J. Abbe and MARYELLEN ABBE, Plaintiff,
against
BSH Home Appliances Corp., Defendant.
34685/06
Andrew M. Engel, J.
This action was commenced on or about September 29, 2006, seeking to recover the sum of $15,000.00 for the alleged improper installation of a cook top by the Defendant's factory representative. Issue was joined on or about October 24, 2006. The Defendant now moves for an order granting it summary judgment, dismissing the Complaint. The Plaintiffs oppose the motion.
Summary judgment is a drastic remedy, Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 (1957), which should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 (1978)
The essential facts herein are not in dispute. On April 15, 2000, as part of a complete home renovation, the Plaintiffs purchased a Bosch Cook Top ("cook top") manufactured by the Defendant, from Capuano Home Appliances Sales, Inc. Prior to April 19, 2000 the cook top was installed by Danark Custom Kitchens and Bathrooms. Prior to this installation, the granite, tile and marble around the counter top and cook top was completely renovated by Alberto Condoleo Tile & Marble Construction, Inc.
On September 18, 2000 the Defendant's authorized factory representative, G.A. Service Corp., received a call advising that the cook top purchased by the Plaintiffs had imploded and melted and that the glass surface thereon had shattered. In response, on October 7, 2000, the Defendant provided a replacement cook top. G.A. Service Corp. installed the replacement cook top at that time, using the same cut out in the counter created by Alberto Condoleo Tile & Marble Construction, Inc. without any modification.
Between October 7, 2000 and July 4, 2006, the Plaintiff had no additional problems with the replacement cook top. On or about July 4, 2006 the replacement cook top imploded and melted and the glass surface thereon shattered. This was again reported to the Defendant, which, following inspection, indicated that the problem appeared to be that the counter top cutout was slightly too big, but was willing to provide a new cook top once the Plaintiffs made the necessary modifications to accommodate and support the weight of the cook [*2]top. The Plaintiffs, instead, chose to purchase another cook top and have same installed by another vendor on November 21, 2006.
The Plaintiffs' claim of negligent installation of the replacement cook top notwithstanding, this action, which seeks to recover damages for injury to the product purchased from the Defendant and consequential losses flowing therefrom, is actually one for breach of contract, precluding recovery in tort. Bocre Leasing Corp. v. General Motors Corp. (Allison Gas Turbine Division), 84 NY2d 685, 621 NYS2d 497 (1995); EIFS, Inc. v. Morie Co., Inc., 298 AD2d 551, 750 NYS2d 86 (2nd Dept. 2002); Weiss v. Polymer Plastics Corp., 21 AD3d 1095, 802 NYS2d 174 (2nd Dept. 2005); Manhattanville College v. James John Romeo Consulting Engineer, P.C., 28 AD3d 613, 813 NYS2d 767 (2nd Dept. 2006) Nevertheless, as a negligence action, the Plaintiffs' claim would have to be dismissed due to the expiration of a three (3) year statute of limitations. CPLR § 214.
Given the undisputed facts, the transaction between the parties was one for the sale of goods as covered by Article 2 of the Uniform Commercial Code. As is evidenced by the fact that the original cook top was not even installed by the Defendant, it is clear that the predominant agreement between the parties was for the purchase of the cook top; the installation of the replacement cook top was incidental to the parties' agreement. As such, the four (4) year statute of limitations set forth in UCC § 2-725 is controlling. Levin v. Hoffman Fuel Co., a Division of Chevron, U.S.A., Inc., 94 AD2d 640, 462 NYS2d 195 (1st Dept. 1983) aff'd 60 NY2d 665, 468 NYS2d 104 (1983); Franklin Nursing Home v. Power Cooling, Inc., 227 AD2d 374, 642 NYS2d 80 (2nd Dept. 1996); Chernick v. RCA, 207 AD2d 373, 616 NYS2d 221 (2nd Dept. 1994)
The Plaintiffs' cause of action accrued upon delivery and, here, installation of the replacement cook top. Franklin Nursing Home v. Power Cooling, Inc., supra .; Manhattanville College v. James John Romeo Consulting Engineer, P.C., 5 AD3d 637, 774 NYS2d 542 (2nd Dept. 2004); Potomac Insurance Co. v. Rockwell International Corporation, 94 AD2d 763, 462 NYS2d 707 (2nd Dept. 1983); Parrino v. Sperling, 232 AD2d 618, 648 NYS2d 702 (2nd Dept. 1996) There being no dispute that the replacement cook top was installed on October 7, 2000 and that this action was not commenced until on or about September 29, 2006, almost six (6) years later, the action is barred by the statute of limitations.
In addition thereto, the Plaintiffs admit to having received and read the owner's manual for the cook top, which provides that the cook top is warranted to be free from defects in materials and workmanship for a period of twelve (12) months from the date of installation; that the gas burner assemblies, gas taps, igniter switches and spark module of the cook top shall be free from defects in material continuing for twenty-four (24) months from installation; that the glass cook top is warranted against breakage due to thermal shock for thirty-six (36) months from installation; and, most importantly, these warranties expressly excluded defects resulting from, among other things, installation. The manual also clearly stated that any warranties implied by law, whether for merchantability, fitness for a particular purpose or otherwise, shall be effective only for the periods that the express warranties are in effect. Based thereon, the Defendant's liability, if any, under a breach of warranty claim, is also precluded by the terms of the warranties themselves.
Accordingly, the Defendant's motion for summary judgment is granted; and, the action is dismissed.
This constitutes the decision and order of this court.
[*3]
Dated: Hempstead, New York
May 30, 2007
___________________________
ANDREW M. ENGEL
J.D.C.
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