Reilly Green Mtn. Platform Tennis v Cortese

[*1] Reilly Green Mtn. Platform Tennis v Cortese 2007 NY Slip Op 52672(U) [28 Misc 3d 1234(A)] Decided on November 14, 2007 Supreme Court, Westchester County Scheinkman, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 14, 2007
Supreme Court, Westchester County

Reilly Green Mountain Platform Tennis and RPTG, Ltd., Plaintiffs,

against

Sandy Cortese, GARY G. JODZIS, PPG INDUSTRIES, INC., PPG ARCHITECTURAL FINISHES, INC., C.R. WALLAUER & Co., and "JOHN DOE," a PPG representative who attended the March 2003 Meeting, Defendants.



12795/06



SCHIAVETTI, CORGAN, DiEDWARDS &

NICHOLSON, LLP

By: Keith Dewar, Esq.

Attorneys for Plaintiffs

709 Westchester Avenue

White Plains, New York 10604

KAYE SCHOLER, LLP By: Glenn J. Pogust, Esq.

Attorneys for Defendants PPG, Cortese & Jodzis

425 Park Avenue

New York, New York 10022-3598

Alan D. Scheinkman, J.

BACKGROUND

Reilly Green is in the business of building, painting and maintaining [*2]platform tennis courts. (Casiraghi Aff., ¶2)[FN1]. It is owned by Christopher Casiraghi and his wife. (Casiraghi Aff. ¶1) While Reilly Green is itself relatively new, having been formed in April, 2002 (id), only about one year before the events in question, it professes to be the largest manufacturer and maintainer of paddle tennis courts in the United States (Casiraghi Aff., ¶1).[FN2]

Christopher Casiraghi has been involved in the business for over 30 years (Casiraghi Aff., ¶3). He was introduced to the business by his father, Noel, who taught him how to build, paint and maintain platform tennis courts. (Casiraghi Dep. at 21). Christopher Casiraghi has had no formal training. His college degree was in urban development and political science (Casiraghi Dep. at 17) and his training in the platform tennis business was strictly on-the-job. (Id. at 21).

When Casiraghi was learning the business from his father in the early 1970s, platform tennis court surfaces were principally wood. (Casiraghi Dep. at 22). Bare wood would be too slippery for play and requires protection from the elements. (Casiraghi Dep. at 75). Wood courts were typically painted with an oil based enamel. (Casiraghi Dep. at 22).

In or about 1975 to 1977, aluminum began to replace wood as the court surfaces. (Id. at 24). By 2002, the vast majority of platform tennis courts had aluminum surfaces. (Id. at 30-31). Bare aluminum also needs to be coated both so that the court will be safe for play and so that the court is protected from the elements. (Id. at 75). Plaintiffs apply an enamel or an epoxy aggregate to paint, that they refer to as a "RJR grip" and market as a product benefit, in order to provide a non-slip surface. (Id. at 33, 219-22). Plaintiffs at one time may have obtained the paint directly from PPG; since at least 2002, Plaintiffs obtained PPG paint through Wallauer. (Id. at 60-61). Cortese is PPG's sales manager for Southern New York. (Cortese Dep. at 7).

The platform tennis season is typically from October 1 to April 1, that is, during the winter months (Casiraghi Dep. at 70). As a result, heaters are used underneath the courts in order to clear snow and ice. (Id. at 70-71). The coating for the courts must provide a non-slip surface as well as withstand ice, snow, freezing rain, the sub-surface heating, the pounding of athletic shoes, chemicals used to clear the courts or tracked in on players' shoes, and elements of sun, rain, mildew, leaves and other debris. (Casiraghi Dep. at 70-74). [*3]

With the transition to aluminum courts, Casiraghi's father eventually began to use epoxy-based paints on the aluminum court surfaces. (Casiraghi Dep. at 28). Prior to 2002, Plaintiffs used PPG Epoxy paint referred to as the "97 Series" paint or as "old Aquapon". (Casiraghi Aff., ¶6; Casiraghi Dep. at 42-43, 53-54, 93-94; Cortese Dep. at 12). However, in 2002, Casiraghi learned that, because of environmental regulations, he could no longer use the 97 Series paint. (Casiraghi Dep. at 42-43, 53-54; see also Cortese Dep. at 12). Casiraghi shifted to another PPG paint known as the "95 Series" paint or as "Aquapon 35". (Casiraghi Dep. at 94; Cortese Dep. at 13). In the late winter of 2002-2003, Casiraghi learned of "a random problem where the paint above where the heater was located underneath the court, would discolor and turn, you know, whitish". (Casiraghi Dep. at 90-91). This problem affected about 12 courts. (Id. at 92). He asked for a meeting. He was not certain whether he spoke with someone at Wallauer who, in turn, contacted Cortese or whether he contacted Cortese directly. (Id. at 90). In any event, he wanted a meeting to discuss the problem; "I asked that they take a look at the problem and, you know, try to give me some answers. And it was — I — I wanted to head off what was a small problem from becoming a big problem". (Id. at 97).

At the time of the events in question, Jodzis was a senior technical service representative for architectural finishes for PPG, whose job was to field questions from the field relating to product information. (Jodzis Dep. at 8-9). In response to Casiraghi's request for help, a meeting was arranged at his office with Cortese and Jodzis. (Casiraghi Dep. at 97-98). The meeting took place in March, 2003. (Jodzis Dep. at 28). Cortese requested that Jodzis come with him to a customer's office to investigate some issues that the customer was having. (Jodzis Dep. at 27; see Cortese Dep. at 21-22).

According to Casiraghi's deposition testimony, at the meeting, Jodzis suggested a different paint but said he "wanted a little bit of time to just confirm that it was a right product" and asked if there was a location at which he could see the problem. (Casiraghi Dep. at 98). Casiraghi testified that Jodzis was "thinking on his feet coming up with a solution"; Casiraghi could not recall anything coming from Cortese, other than possibly asking about locations. (Id. at 99-100). Casiraghi did recall Jodzis telling him to switch to the paint that he eventually switched to, though he did not know then what paint that was, other than it was an epoxy paint. (Id. at 102).Casiraghi said that he wanted a paint that would perform in a manner equal to or better than the 97 Series paint and that, during the discussions at the meeting, Jodzis became "excited about this one particular paint that he recommended that we switch to. He wanted, you know, [to] follow that up and look into it a little bit further, and that's the paint we did switch to." (Id. at 103-104). According to Casiraghi, Jodzis thought the new paint would be a good product "but he wasn't ready to absolutely recommend it and wanted to do a little bit of homework". (Id. at 120). He did not recall Jodzis' telling him that epoxy paint would have a degree of chalking. (Id. at 117-118). Casiraghi did not ask what the downside of switching to the new paint would [*4]be: "What was important to me was getting a product that worked like my old paint did. And that was the only thing that was of importance to me, and that's all I wanted from PPG." (Id. at 118).

Cortese's and Jodzis' version of the meeting is different. Cortese testified at his deposition that, at the meeting, Casiraghi voiced his concern with the blushed area over the heater and that Jodzis said that by using a different product the issue could be corrected. (Cortese Dep. at 23-24). Cortese said that the meeting ended with the PPG representatives promising to get Casiraghi some product that he could test. (Cortese Dep. at 29). However, Cortese averred that, at the meeting, it was discussed that the Aquapon High Build would chalk uniformly versus seeing blushed out areas. (Cortese Dep. at 33).

Jodzis' testimony was that he did not recommend any paint at the meeting, because he needed further information, but that, later, in April, 2003, he sent Casiraghi an email recommending the Aquapon High Build along with product information. (Jodzis Dep. at 43). He also called Casiraghi and told him that he had an alternative product. (Id. at 44). Jodzis states that the email message (not submitted itself) included as an attachment a Technical Data Bulletin for the Aquapon High Build paint. (Jodzis Aff. at ¶4).[FN3] This Bulletin (Ex. B to Jodzis Aff.) contains on its very first page a section with a bold, conspicuous heading "LIMITATIONS OF USE" which includes the following: Testing of a small area is recommended....These coatings lose gloss and will chalk on prolonged exterior exposure....

Casiraghi does not recall being given any printed information regarding the paint or any documentation that informed him that the paint would chalk or whiten when used in exterior applications. (Casiraghi Aff., ¶13). However, he does not directly deny receiving an email from Jodzis. Further, he acknowledged in his deposition testimony that he believed that he did see the "spec sheets", though he did not have a specific recollection. (Casiraghi Dep. at 140). While he testified that he did not recall Jodzis giving him the material (Id.), the failure to recall the happening of an event is different from denying that the event occurred.

Following the meeting, Jodzis had made a site visit to a racquet club in Pennsylvania (Jodzis Dep. at 44; Casiraghi Aff. at ¶13)[FN4] and, thereafter, called [*5]Casiraghi sometime in April, 2003 and told him that, based on the site visit, PPG had an alternative paint for Casiraghi to use. (Jodzis Dep. at 44-45). Jodzis testified that he told Casiraghi that the product "would turn uniformly white rather than just spot turning white" (Jodzis Dep. at 44-45). At his deposition, Casiraghi was unable to recall whether Jodzis told him directly that this was the product to use or whether Cortese said that to him. (Casiraghi Dep. at 125). Moreover, Casiraghi was unable to recall the specifics of the conversation. (Id.) However, in his affidavit in opposition to this motion, Casiraghi states that Jodzis told him that the Aquapon High Build would perform as Casiraghi requested at the meeting and would be superior in all respects to the 97 Series paint. Casiraghi denies being told that the product would chalk or that it would turn white. (Casiraghi Aff., ¶13).

Casiraghi ordered and began to use the alternative paint, known as "Aquapon High Build" (Cortese Dep. at 30-33; Casiraghi Aff. at ¶13; see Jodzis Dep. at 59). Casiraghi applied the paint to all of the courts he was working on without first having applied it to a few as a test. (Casiraghi Dep. at 155). He did this because the problem with the newest paint did not reveal itself immediately and the painting season for the courts was at hand. (Casiraghi Dep. at 155-156).

Jodzis claims that the labels on the paint cans contained a section on warranties. (Jodzis Aff., ¶4). The label consists of a single sheet, printed in three columns. The section on warranties appears at the bottom of the left hand column, with the word "warranty" appearing in all capital letters in bold print. It reads as follows: WARRANTY: PPG warrants, for one year after the date of purchase, that this product will conform to PPG's published specifications. If this product fails to conform to this warranty, PPG, as its sole liability, will furnish replacement product or refund the purchase price. THIS IS PPG'S ONLY WARRANTY; ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED BY PPG. IN NO EVENT WILL PPG BE LIABLE UNDER ANY THEORY OF RECOVERY (WHETHER BASED ON CONTRACT, NEGLIGENCE OR STRICT LIABILITY) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO THIS PRODUCT.

At his deposition, Casiraghi admitted that he looked at the paint cans and saw the labels on them. (Casiraghi Dep. at 51). His affidavit in opposition to this motion is silent on his observations as to the labels on the paint cans.

Casiraghi started using the new paint in July 2003 and first learned of a problem in August 2004 when a customer, the Nyack Field Club, called and said that its [*6]court had turned white. (Casiraghi Dep. at 164-166; Casiraghi Aff., ¶17). The difficulty was not that the white paint obscured the lines on the court; rather, when the bill hit the ground, a little bit of the chalking would come onto the ball, the regular color of the court could be seen underneath and "when you wound up knocking the ball around a bunch of times, you had a bunch of, like, leopard spots on the court..." (Casiraghi Dep. at 170-171). Casiraghi notified PPG that there was a problem. (Casiraghi Dep. at 174). Casiraghi power washed the courts and the courts resumed their original look. (Casiraghi Dep. at 183). However, the problem recurred every year; while power washing would solve the problem, power washing is not a usual and customary maintenance item. (Casiraghi Dep. at 186). According to Casiraghi, some 275 courts were power washed specifically and solely because of the chalking of the courts. (Casiraghi Dep. at 209). Some customers demanded repainting, which was accomplished with a Sherwin-Williams paint. (Casiraghi Dep. at 178, 204). Some 30 courts were painted, with 10 being repainted at a discount. (Id. at 209). Some customers shifted to competitors, though some of the lost business may have been for reasons other than the paint problem. (Id. at 195-196).

Casiraghi reports, in his affidavit, that, as of August 22, 2007, Plaintiffs have washed over 305 courts at a cost of $500 per court, for a total of $152,500. However, he states that "the vast majorities of these power washings were done at no cost to the clients and were not invoiced." (Casiraghi Aff., ¶21). Casiraghi does not indicate whether the $500 per court figure represents what he would have (or actually did) charge customers or an out-of-pocket expense, or otherwise indicate how this figure was arrived at.

Casiraghi also states that Plaintiffs have resurfaced 20 courts at no charge and 10 courts at a discount totaling $60,890. Again, he does not explain whether the $60,890 figure represents actual payments by customers or his out-of-pocket expenses or set forth how this figure was arrived at.

Casiraghi also avers that he spent over 900 hours of his time in rectifying the problem and apparently seeks recompense of $112,500, charging $125 per hour for his time. He states that Plaintiffs lost at least 13 customers due to this incident, but offers no details in support of this statement (Casiraghi Aff., ¶21).

Of some interest, Casiraghi testified that Plaintiffs offer to their customers a "three-year warranty on a new court for the surface, and it's for adhesion, not for wear." (Casiraghi Dep. at 77). Plaintiffs' warranty covers adhesion — that the paint will not separate from the aluminum. The warranty does not cover either wear or appearance. (Id. at 77-78). On the other hand, he testified that if a surface does not last four years, though subjected to normal conditions, and a customer requests, Plaintiffs will take corrective measures, either at no charge or at a prorated charge. (Id. at 78). However, it is not clear whether Plaintiffs took corrective actions because they believed themselves legally bound to do so or because doing so was in the business interests of Plaintiffs to try to satisfy displeased customers. [*7]

THIS ACTION

This action was commenced by the filing of a Summons and Complaint with the County Clerk of the County of Westchester on July 12, 2006.[FN5] Service was effected on the PPG Defendants on July 17, 2006. The PPG Defendants interposed their Answer on October 11, 2006, denying the material allegations of the Complaint and asserting various affirmative defenses, including a statute of limitations defense.

The Complaint articulates three Causes of Action. The First Cause of Action alleges that, in or around March, 2003, the PPG Defendants represented that the Aquapon High Build paint, manufactured by PPG, was appropriate for Plaintiffs' intended use — the repainting of some 300 platform tennis courts. (Complaint, ¶¶69-71, 104-106, 110-112). Plaintiffs assert that, prior to July, 2003, they purchased the paint in reliance on this representation. (Complaint, ¶¶73, 109, 115). However, in or around July, 2004, Plaintiffs discovered the paint failed to perform as represented. (Complaint, ¶137). Plaintiffs assert that, as a result, they incurred substantial expense in fixing, restoring and repairing over 300 platform tennis courts. (Complaint, ¶139).

The Second Cause of Action alleges that Defendants warranted and represented, expressly and impliedly, that the Aquapon High Build paint was "fit, capable and proper for the use and purpose for which it was intended to be used" (Complaint, ¶144) and was "a marketable quality and proper and appropriate for the use and purpose for which it was intended to be used". (Complaint, ¶145). Plaintiffs assert that they "relied on the skill and judgment of the defendants and their representations and warranties" with respect to the use of the paint "pursuant to their intentions as expressed to the defendants herein". (Complaint, ¶146). Plaintiffs charge the representations and warranties were false, misleading and inaccurate in that the paint, when put to the test of actual wear, was and proved to be unsound and unsuitable for the purpose for which its use was intended and not of marketable quality. (Complaint, ¶147). Plaintiffs allege that they were damaged by the breach of warranty. (Complaint, ¶148).

The Third Cause of Action contends that Defendants "were in breach of their implied warranties" (Complaint, ¶153) and that "[f]rom July 2003 to date while relying upon defendants skills, representations and warranties plaintiffs were damaged." (Id. at 152). [*8]

Under each of the three Causes of Action, Plaintiffs seek to recover $1.5 million. (Complaint, ¶¶142, 150, 154). The PPG Defendants move for summary judgment dismissing Plaintiffs' claims.[FN6]

THE SUMMARY JUDGMENT STANDARD

The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). The moving party must tender[FN7] sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Failure to make that initial showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Weingrad v. New York University Medical Center, 64 NY2d 851, 643-644 (1985); St. Luke's-Roosevelt Hospital v. American Transit Insurance Co., 274 AD2d 511 (2d Dept. 2000); Greenberg v. Manlon Realty, Inc., 43 AD2d 986 (2d Dept. 1974). Once the moving party has made a prima facie showing of entitlement of summary judgment, the burden of production shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact or demonstrate an acceptable excuse for failing to do so. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Tillem v. Cablevision Systems Corp., 38 AD3d 878 (2d Dept. 2007); Fleming v. Graham, 34 AD3d 525 (2d Dept. 2006).

The court's function on a motion for summary judgment is issue finding rather than issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 8 (1960); Sillman v. Twentieth Century Fox Film Corp., supra .

The role of the Court is to determine if bona fide issues of fact exist, and not to resolve issues of credibility. As the Court stated in Knepka v. Tallman, 287 AD2d 811 (4th Dept. 2000): [*9] Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcock, 190 AD2d 1037; see generally Black v. Chittenden, 69 NY2d 665; Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 341. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present credibility issues for trial. See, Schoen v. Rochester Gas & Elec., 242 AD2d 928, Mickelson v. Babcock, supra ).

See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999) ["The deponent's arguably inconsistent testimony elsewhere in his deposition merely presents a credibility issue properly left for the trier of fact."]

In reviewing a motion for summary judgment, the Court must accept as true the evidence presented by the nonmoving party and must deny the motion if there is "even arguably any doubt as to the existence of a triable issue." Fleming v. Graham, 34 AD3d 525, 526 (2d Dept. 2006), quoting Baker v. Briarcliff School District, 205 AD2d 652, 653 (2d Dept. 1994).

Mindful of these standards, the Court turns to an analysis of the particular claims asserted herein and the contentions of the parties on this motion.

THE BREACH OF EXPRESS WARRANTY CLAIM

(Second Cause of Action)

The PPG Defendants argue that there is no admissible evidence that would support a finding that Defendants made an express warranty to Plaintiffs. Plaintiffs' memorandum of law offers no opposition to the legal arguments made in support of the portion of the PPG Defendants' motion addressed to the warranty claims in the Second and Third Causes of Action.

In any event, Defendants point out that, in his deposition testimony, Casiraghi never claimed that Jodzis or Cortese told him that Aquapon High Build would not whiten or chalk. Casiraghi's deposition testimony was to the effect that Jodzis told him at the March 2003 meeting that there was an alternative paint that would avoid the discoloration over the heater area but he could not then recommend it as he wanted to do some homework. Casiraghi further testified at his deposition that there was a subsequent telephone call, either with Jodzis or with Cortese, in which use of the Aquapon High Build was recommended. However, Casiraghi was unable to recall the content of this telephone conversation: [*10] Q.Okay. And then at some point you made a determination that Mr. Jodzis said or conveyed to you in some manner that this was the product that you should use?A.Right, and I can't recall if I spoke to Gary and he said it. Because, as I said, there was a conversation, I can't remember the specifics of that conversation or if it was a conversation with Sandy where he said it, but as some point that — that was what was said.Q.Well, who, you can't tell me who said it?

A.Uh-hum.

Q.Is that right?

A.Correct.

Q.Okay, Can you tell me exactly what was said?

A.No.

*********

Q.Okay. And you don't know whether you actually had a conversation with anyone?

A.I — I know that I've had many conversations with —

Q.I'm talking about this.

A.My recollection is that I can't recall the specific conversation, no.

Q.So you can't recall anything that you might may have asked; is that right?

Can you recall anything that you asked?

A.In a conversation after the meeting?

Q.Yeah, in the conversation where you — that you are saying is the basis for your decision to move forward with this 0304 product?

A.I can't recall.

(Casiraghi Dep. at 125-126). [*11]

Section 2-313 (subd. 1[a]) of the Uniform Commercial Code provides that, any "affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis for the bargain creates an express warranty that the goods shall conform to the affirmation or promise". However, "an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty". Uniform Commercial Code, §231(subd. 2).

The Casiraghi deposition testimony falls well short of establishing an express warranty of any sort. According to Casiraghi's own deposition testimony at the meeting, Jodzis did not make a final or binding recommendation of the Aquapon High Build paint at the March, 2003 meeting. Rather, Jodzis was excited about the possibility of the utility of the Aquapon High Build paint as a replacement paint but explicitly declined to recommend it then, indicating that he needed to do some homework before he could make a recommendation. While, according to Casiraghi, a recommendation was ultimately received by him, he could not state what was told to him at that time. Thus, accepting Casiraghi's version of the events as true, there is nothing that indicates that any affirmation of fact or promise was made to him, other than a recommendation to use the paint. The mere recommendation of the paint does not create an express warranty.

The version of events offered by the PPG Defendants does not assist Plaintiffs. According to Jodzis, he told Casiraghi that the Aquapon High Build would turn uniformly white.

In his affidavit in opposition to this motion, Casiraghi states that, after the meeting and after the site visit by Jodzis, Jodzis told him that the Aquapon High Build would perform as Casiraghi requested at the meeting and would be superior in all respects to the 97 Series paint. However, as Defendants point out in their reply papers, Casiraghi's affidavit in opposition to summary judgment is at variance with his deposition testimony.

Casiraghi's affidavit does not offer any explanation for the discrepancy between his affidavit (attesting to Jodzis' having told him specifically that the paint would perform as Casiraghi requested) and his deposition testimony (stating that he could not recall if he even spoke to Jodzis, much less recollect what was said). Even though Defendants have submitted Casiraghi's deposition as an exhibit to their papers, and their moving papers discuss at length the substance of, and the significance of, his testimony, Casiraghi offers no explanation for the testimony he gave then nor any explanation for his contrary statement in his affidavit. Moreover, the statement made in Casiraghi's affidavit is conclusory, not providing any detail as to date (or even approximate date) as to when the conversation took place or any of the detail of the conversation.

It is well settled that the opponent of a summary judgment motion may not [*12]raise a triable issue of fact by offering an affidavit which contradicts his earlier deposition testimony and which is designed to avoid the consequences of admissions in the deposition testimony or elsewhere. See, e.g., Rosenberg v. Kotsek, 41 AD3d 573 (2d Dept. 2007); Central Irrigation Supply v. Putnam Country Club Associates, 27 AD3d 684 (2d Dept. 2006); Hartman v. Mountain Valley Brew Pub, Inc., 301 AD2d 570 (2d Dept. 2003). This rule serves a number of important purposes. It encourages litigants to be as truthful and candid as possible in their sworn pre-trial testimony. It prevents the subversion of the discovery process by refusing to allow a party to give one version of events at a deposition, inducing the other side to rely on it, and then springing an alternative version on his or her adversary at a later date. It is certainly possible that a deposition witness could, after the deposition, reflect on the testimony and realize that answers were incomplete or inaccurate, but, in that event, there is a process for making changes in the transcript.

Here, Casiraghi made changes to the transcript before executing it on July 18, 2007, over one month after his June 1, 2007 deposition, which changes did not significantly effect his prior testimony on this issue. Further, he does not offer any explanation for the abrupt improvement in his recollection between July 18, 2007 and the signing of his affidavit on August 22, 2007.

Additionally, even if Casiraghi's affidavit is considered probative, all that he states is that at the July, 2003 meeting, Jodzis stated that "he believed that a paint known for the purposes of this litigation Aquapon High Build paint would perform exponentially better' than the previous paint in all respects." (Casiraghi Aff., ¶12) (emphasis in original). Casiraghi acknowledges that Jodzis "said at that meeting that he needed a little time to confirm if this was the right product." (Id.). While he states that Jodzis told him later that the Aquapon High Build paint would perform as Casiraghi requested and was "superior in every aspect to the 97 Series paint" (Casiraghi Aff., ¶13), Casiraghi does not claim that he was promised by Jodzis that the Aquapon High Build would not turn white (uniformly or otherwise). While Casiraghi does claim that he was never told that the paint would turn white, the absence of information about a change in color is not the same as a promise or affirmation that a change in color would not happen.

Casiraghi's affidavit makes it clear that whatever Jodzis stated at the meeting was a statement of belief, not a statement of fact (he "told me that he believed" the Aquapon High Build would be better). The later statement that Jodzis said that the Aquapon High Build would perform as requested and was superior in every respect to the prior paint is also a statement of opinion, as distinguished from an affirmation or promise as to a specific fact.

Further, any warranties were expressly disclaimed by PPG. Casiraghi admits that he read the labels on the paint cans which contain an express disclaimer of any warranties not set forth therein. Further, Casiraghi, as a business professional, was obligated to examine the paint that he was sent and to read the descriptive material [*13]provided. See Landis and Staefa (UK) Limited v. Flair Intentional Corp., 60 F. Supp. 2d 14, 23 (E.D.NY 1999). Casiraghi does not contend that the placement, terminology and conspicuousness of the warranty disclaimer fail to meet the requirements of Section 2-316 of the Uniform Commercial Code.

Plaintiffs argue that the disclaimer does not preclude the introduction of parol evidence to establish their reliance on Defendant's representations, citing Cleangen Corp. v. Filmax Corp., 3 AD3d 468 (2d Dept. 2004). That case is, however, entirely different. There, plaintiff was trying to collect on a note given in connection with the sale of a Laundromat business. Defendant argued that it stopped paying after it discovered that the underground water filtration system was inoperable and the business had been operating in violation of environmental regulations. The Second Department held that the general language of a disclaimer clause in the sales agreement did not preclude a defense of fraud in the inducement or preclude the introduction of parol evidence to establish defendant's reliance on representations made by plaintiff. 3 AD3d at 469. Here, Plaintiffs are not seeking to present a defense; rather, Plaintiffs are trying to present a cause of action. The language in the disclaimer on the paint cans is addressed to limiting PPG's liability. Had PPG sued Plaintiffs for non-payment, then, perhaps, Cleangen would be on point. Cleangen refused to allow a general disclaimer to be used to prevent the assertion of a defense; it is quite a different matter to try to prove a warranty in the face of an express warranty disclaimer. Indeed, Plaintiffs' position would mean that it would never, or only rarely be possible, to disclaim an oral, express warranty. Such a position is at variance with Section 2-316 of the Uniform Commercial Code which permits warranties to be disclaimed.

For these reasons, the motion as respects the Second Cause of Action should be granted.

THE BREACH OF IMPLIED WARRANTY CLAIM

(Third Cause of Action)

The Third Cause of Action seeks to establish liability based on implied warranty. The Complaint does not indicate what the nature, or source, of the implied warranty is. Though Defendants point out in their papers that Plaintiffs have not identified what implied warranties they are trying to assert, Plaintiffs' opposition is silent in response. Accordingly, the Court concludes that Plaintiffs have failed to demonstrate the applicability of any implied warranty theory of liability.

In any event, implied warranties can be disclaimed, just as express warranties can be. The only particular stipulations are that disclaimer of the implied warranty of merchantability must mention merchantability and disclaimer of an implied warranty of fitness must be in writing and be conspicuous. Uniform Commercial Code, §2-316 (subd. 2). Those requirements have been met here; indeed, Plaintiffs do not contend otherwise. [*14]

Accordingly, the motion with respect to the Third Cause of Action should be granted.

THE NEGLIGENT MISREPRESENTATION CLAIM

(First Cause of Action)

The submissions of the parties focus primarily on the First Cause of Action, which the parties agree sounds in negligent misrepresentation. The PPG Defendants argue that: (a) this claim is barred by the statute of limitations; (b) Plaintiffs cannot establish the claim because there is no privity between the parties, there is no evidence of an incorrect statement, there was no reasonable reliance, there is no evidence of proximate cause, and there is no evidence of damages; and (c) Plaintiffs cannot recover any economic losses on this claim. Not surprisingly, Plaintiffs disagree.

A.Statute of Limitations

While the parties agree that the First Cause of Action sounds in negligent misrepresentation, the parties disagree as to the particular statute of limitations that applies to this claim and as to the time when this claim accrues.

Defendants argue that a three year statute of limitations applies, contending that this action essentially is a product liability claim seeking damages for allegedly defective goods. Plaintiffs respond that the period of limitations for negligent misrepresentation is six years.

Which statute of limitations applies to a claim of negligent misrepresentation is a matter of some discussion in the cases. This is because CPLR 214 (subds. 4, 5, 6) provides for a three year period of limitations for negligence and malpractice cases, while CPLR 213(subd. 6) provides for a six year period for actions based on fraud. Claims for negligent misrepresentation are, in essence, a hybrid, being based partly on negligence and being based partly on misrepresentation.

The elements of a cause of action sounding in negligent misrepresentation include: carelessness in imparting words and (1) an awareness by the maker that the statement is to be used for a particular purpose; (2) reliance by a known party on the statement in furtherance of that purpose; and (3) some conduct by the maker of the statement linking it to the relying party and evincing its understanding of that reliance. Ford v. Sivilli, 2 AD3d 773, 774 (2d Dept. 2003); Fromer v. Vogel, 50 F. Supp. 2d 227, 242 (S.D.NY 1999); see generally PJI 2:230. Fraud, on the other hand, requires a particularized factual assertion which supports the inference of scienter. Ford v. Sivilli, supra . Negligent misrepresentation is viewed as a species of fraud that replaces the required showing of scienter with a showing of negligence. Fromer v. Vogel, supra , 50 F. Supp. 2d at 243. [*15]

For purposes of statute of limitations analysis, the claims asserted must be examined in order to ascertain whether the claim "stands in the shadow of fraud", Fromer v. Vogel, supra , 50 F. Supp. 2d at 242, in which event the six year period of limitations applies, or whether the claims are best viewed as standing in the shadow of negligence, in which case the three year statute of limitations applies. Stated somewhat differently, the six year statute applies where the negligent misrepresentation claim is closely aligned with an intentional misrepresentation claim. See Asbeka Industries v. Travelers Indemnity Co., 831 F. Supp. 74, 80 (E.D.NY 1993).

The necessity for this analysis is apparent from review of the precedents. In Santiago v. 1370 Broadway Associates, L.P., 96 NY2d 765 (2001), the Court of Appeals dealt with a third party action by an insured against an insurance broker which charged "negligence and/or errors or omissions" and "negligence, material misrepresentation or fraud". The Court ruled that, because there were issues of fact as to whether the third-party defendant's actions were negligent or fraudulent, the statute of limitations issue could not be decided as a matter of law. 96 NY2d at 766.

In Fandy v. Lung-Fong Chen, 262 AD2d 352, 353 (2d Dept. 1999), cited by Plaintiffs, the Court stated that plaintiff's "causes of action based on constructive fraud and negligent misrepresentation are covered by the six-year Statute of Limitations..." Earlier, the Second Department stated, in Milin Pharmacy, Inc. v. Cash Register Systems, Inc., 173 AD2d 686, 687 (2d Dept. 1992) that it was proper to determine that "the plaintiff's cause of action sounding in negligent misrepresentation is governed by a six-year Statute of Limitations..." However, in Milin, the plaintiff asserted a claim for actual fraud, though that claim was found to be legally insufficient. In contrast, in Country World, Inc. v. Imperial Frozen Foods Co., 186 AD2d 781 (2d Dept. 1992), involving the sale of apple juice concentrate, the Court affirmed both the dismissal of a fraud claim as well as the denial of a motion to amend so as to add a claim based on negligent misrepresentation. As to the denial of the motion to amend, the Second Department held that the denial was proper because the statute of limitations for negligent misrepresentation had run, citing, CPLR 203(subd. a) and CPLR 214 (subds. 4, 5). The citation to CPLR 214(subds. 4 and 5) would indicate the applicability of the three year statute set forth in CPLR 214.

Cases from other courts likewise treat negligent misrepresentation claims which do not sound in fraud as being subject to the three year statute of CPLR 214. HSBC Bank USA v. Bond, Schoeneck and King, PLLC, 16 Misc 3d 813, 435-436 (Sup. Ct. Erie County 2007); see also A.H.A. General Construction, Inc. v. Edelman Partnership, 291 AD2d 239 (1st Dept. 2002).

Here, Plaintiffs do not allege actual fraud. Nor do Plaintiffs allege constructive fraud, which would require an allegation and proof of the existence of a fiduciary or confidential relationship between the parties. See Del Vecchio v. Nassau County, 118 AD2d 615 (2d Dept. 1986). In the absence of allegations of fraud or [*16]constructive fraud, Plaintiffs may not rely on the fraud statute of limitations in order to circumvent the statute of limitations applicable to a negligence cause of action. See Ruffing v. Union Carbide Corp., 308 AD2d 526, 527 (2d Dept. 2003), citing Cabrini Medical Center v. Desina, 64 NY2d 1059 (1985). As Plaintiffs have neither alleged, nor offered any evidence of, a fraud or constructive fraud case, no issue of fact is presented as to which statute of limitations applies, differentiating this case from Santiago v. 1370 Broadway Associates, L.P., 96 NY2d 765 (2001), supra .

A tort cause of action accrues for statute of limitations purposes when an injury is sustained, i.e., when all of the elements of the tort can be truthfully alleged in a complaint. Kronos, Inc v. AVX Corp., 81 NY2d 90, 94 (1993); Roldan v. Allstate Ins. Co., 149 AD2d 20 (2d Dept. 1989). It is the date of injury, not the date of the wrongful act of the defendant nor the date of discovery of the injury by plaintiff, that is relevant. Kronos, Inc v. AVX Corp., supra .

As applied here, the cause of action accrued when Plaintiffs acted on the alleged representations by purchasing the paint in question. According to the Complaint, Plaintiffs' purchase of the Acquapon High Build for the painting of the platform tennis courts in reliance on the claimed representations occurred prior to July, 2003. (Complaint, ¶73). Casiraghi testified that he began using the paint about July, 2003 (Casiraghi Dep. at 164). His affidavit indicates that the paint was applied from July, 2003 through August 2004 (Casiraghi Aff., ¶16), which supports the conclusion that the paint was first purchased in or about July, 2003.

Cortese testified at his deposition that sample paint was shipped to Casiraghi for testing purposes a week or two after the March, 2003 meeting and shipping would have occurred two to three weeks later. (Cortese Dep. at 31-32). On the other hand, when asked specifically when the paint was "up and running", Cortese testified that "it was anywhere from April to May of a specific year and could have been as late as July, only because he may have had still some product at his facility, and use that prior to moving forward with the new product." (Cortese Dept. 33).[FN8]

As noted previously, this action was commenced by filing on July 12, 2006. The evidence before the Court falls short of establishing as a matter of law that the paint was first purchased by Plaintiffs prior to July 12, 2003. Indeed, it is Defendants who have the burden of showing prima facie when Plaintiffs' cause of action accrued. Matter of Schwartz,44 AD3d 779 (2d Dept. 2007). This they have not done.

The shipment for testing purposes would not be sufficient to trigger the [*17]accrual of the cause of action since Plaintiffs did not act on the alleged representations, by purchasing the product, until after the test paint was supplied and tested. Since both Casiraghi and Cortese have sworn that the paint may first have been purchased in or about July, 2003, without specification as to when in July 2003, the paint was first purchased, the Court cannot conclude, as a matter of law, that the statute of limitations expired prior to the commencement of this action. While it is true that Plaintiffs' complaint alleges that the paint was purchased prior to July, 2003, the Court would permit Plaintiffs to amend their pleading in this respect, with the result that the allegation in the Complaint, while admissible as an admission, would no longer be conclusive on the issue. See CPLR 3025; Imprimis Investors, LLC v. Insight Venture Management, Inc., 300 AD2d 109 (1st Dept. 2002); Olgilvie v. City of New York, 44 AD2d 586 (2d Dept. 1974).

B. Defendants' Substantive Arguments

A claim for negligent misrepresentation requires that the plaintiff demonstrate: (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information. J.A.O. Acquisition Corp. v. Stavitsky, 8 NY3d 144, 148 (2007). The PPG Defendants contend that Plaintiffs cannot meet any of these required elements, as a matter of law.

1.Special or Privity-Like Relationship

As noted above, the first element that Plaintiff must show is the existence of a special or privity-like relationship which imposed on Defendants a duty to impart correct information to Plaintiff. The claim must be dismissed in the absence of such a duty. See Meyerhoeffer v. Haviland Realty Corp., 43 AD3d 888 (2d Dept. 2007).

The PPG Defendants contend that there is no privity between PPG and Plaintiffs because Plaintiffs purchased the paint directly from Wallauer. (See Casiraghi Dep. at 61). However, Casiraghi testified that Wallauer was essentially a conduit, and all of his interactions and discussions about the product, other than specific pricing, have been with PPG and not with Wallauer. (Id. at 62). In the same vein, Cortese testified that his job was to sell products and had regular dealings with Plaintiffs (Cortese Dep. at 22), though he also stated that most of the business was done between Casiraghi and Wallauer. (Id. at 28). But, then, Cortese also stated that he was the liaison for supplying the product, whether shipped to Wallauer's store or to Plaintiffs' facility. (Id.)

The actual invoices for the paint in question have not been submitted on this motion. Nor has any evidence been offered as to who Plaintiffs paid for the paint. The court cannot determine, on this record, whether Wallauer was, in a technical sense, the seller. In any event, even if the paint technically was delivered to Plaintiffs [*18]through Wallauer, the facts presented would appear to warrant the Court treating PPG as if it was the actual seller.

Defendants argue, relying on Pappas v. Harrow Stores, Inc., 140 AD2d 501, 504 (2d Dept. 1988), that the special relationship integral to a negligent misrepresentation claim "generally implies a closer degree of trust than the ordinary buyer-seller relationship". In that case, Plaintiffss put down a deposit on the purchase of an above-ground pool from a provider, Harrows, who sold it unassembled. The provider gave the sellers a form letter setting forth a list of "carefully screened" installation companies but the pool provider stated that it would assume no responsibility for the work of the installers. It also stated that it had established rigid guidelines that the installers had to follow, that each installer would guaranty its own work, and each had agreed to adhere to the provider's standards of workmanship. Plaintiffs were given several business cards of installers, including one from Long Island Pool Service. About one week later, plaintiffs canceled their order with Harrows and purchased a pool from a different company, Polytech. Polytech also recommended Long Island Pool Service as an installer and plaintiffs hired Long Island Pool Services. After one of the plaintiffs was injured while descending from the pool deck, an action was brought, including claims against Harrows. On these facts, the Second Department held, inter alia, that there was no jural relationship sufficient to hold Harrows responsible for recommending Long Island Pool Service to plaintiffs.

Manifestly, Pappas, on its facts, is inapplicable here, insofar as it relates to whether a sufficiently special relationship existed between Plaintiffs and the PPG Defendants to require PPG to speak with care to Plaintiffs. The Court of Appeals has stated that, because the vast majority of commercial transactions are comprised of casual statements and contacts, not all representations by a seller of goods or provider of services will give rise to a duty to speak with care. Kimmell v. Schaefer, 89 NY2d 257,263 (1996). Where the speaker is not a professional (such as an attorney or an accountant or engineer), a special relationship is required in order to give rise to an exceptional duty regarding commercial speech and justifiable reliance on such speech. Id. at 264. The Court of Appeals ruled that, generally, whether the nature and caliber of the relationship between the parties is such that the injured party's reliance on a negligent misrepresentation is a question of fact. The Court opined that the fact finder must take into account whether the person making the representation held or appeared to hold unique or special expertise, whether a special relationship existed, and whether the speaker was aware of the use to which the information would be put and supplied it for that purpose. Id.

In light of the need to analyze the specific facts presented in light of the factors identified by the Court of Appeals, motions for dismissal or summary judgment in negligent misrepresentation cases, to the extent the motions are predicated on a lack of a special relationship, must be closely examined. Compare Fresh Direct, LLC v. Blue Martini Software, Inc., 7 AD3d 487 (2d Dept. 2004) (motion by software buyer to [*19]dismiss action by software seller denied); Grammar v. Turits, 271 AD2d 644 (2d Dept. 2000) (motion by real estate broker to dismiss action brought by tenant denied); Fleet Bank v. Pine Knoll Corp., 290 AD2d 792 (3d Dept. 2002) (motion for summary judgment by mortgagor to dismiss action by mortgagee denied) with Gardianos v. Calpine Corp., 16 AD3d 456 (2d Dept. 2005) (motion by seller of realty for summary judgment in action by buyer granted); Goldman v. Strough Corp., 2 AD3d 677 (2d Dept. 2003) (motion by real estate brokers for summary judgment in action by landowner granted); and WIT Holding Corp. v. Klein, 282 AD2d 527 (2d Dept. 2001) (motion by corporate officer to dismiss claims brought by investor granted).

The facts presented here indicate that there was a course of dealing between the parties; at one time, Plaintiffs were able to acquire paint directly from PPG. There are also facts present which might support a finding that Plaintiffs approached PPG because of PPG's expertise and sought PPG's assistance in finding a suitable product, that PPG was aware that Plaintiffs were soliciting PPG's expertise and would rely upon it, and that PPG supplied information to Plaintiffs so that Plaintiffs could rely upon it. Accordingly, the Court cannot exclude, as a matter of law, the prospect that there was a special relationship between the parties such that PPG was charged with the duty to speak with care.

2.The Absence of an "Incorrect Statement"

Even assuming that a special relationship existed that imposed upon PPG the duty to speak with care, Plaintiffs must, of course, establish that PPG made a representation that was not accurate.

As discussed previously in regard to the express warranty claim, at his deposition, Casiraghi testified that Jodzis did not make a final or binding recommendation at the March 2003 meeting, explicitly telling Casiraghi that he need to do homework. Further, Casiraghi could not recall anything about the subsequent conversation with either Jodzis or Cortese in which the use of the Aquapon High Build was recommended.

As also noted previously, in his affidavit Casiraghi states that Jodzis, at the meeting, stated his belief that the Acquapon High Build would perform better than the prior paint in all respects but wanted time to confirm this. He also states that, later, he was told by Jodzis that the Aquapon High Build was superior in every respect to the previous paint and would perform as requested. These statements cannot be used to circumvent the admissions in Casiraghi's deposition testimony and, in any event, the statements claimed are merely matters of opinion, as distinguished from a representation of specific fact. Casiraghi does not claim that Jodzis or anyone else specifically represented that the Aquapon High Build would not turn white.

A statement of opinion, including a statement as to the general quality of a [*20]product, cannot be the basis of an action for negligent misrepresentation. Schwalb v. Kulaski, 29 AD3d 563 (2d Dept. 2006); Burroughs v. Datacap, Inc., 124 AD2d 622 (2d Dept. 1986). In Pappas v. Harrow Stores, Inc., supra , 140 AD2d 501,504 (2d Dept. 1988), the Court stated that Harrow's statement that the Long Island Pool Service would "perform up to a reasonable standard of workmanship" could not form the basis for a claim of negligence misrepresentation. The Court explained that the plaintiff could not be permitted "to transform what would constitute nothing more than a mere expression of opinion or prediction as to how the recommended installers would perform in the future into an obligation to guarantee their work, regardless of the type and regardless of who manufactured or sold the pools they installed." 140 AD2d at 407. Here, Plaintiffs cannot be allowed to transform any opinion or prediction by Jodzis as to how the paint would perform in the future into a guarantee that the paint would perform, no matter how Plaintiffs mixed it with the aggregate, no matter how Plaintiffs applied it, no matter how the players on the courts trod on it, or no matter how the court owners maintained it.

Of significance, too, is Plaintiffs' statement in their memorandum of law that their claim of "negligence is based, in large part, on defendants failure to inform Mr. Casiraghi that the Aquapon High Build would chalk far more severely than the series 97 or series 95 Aquapon paints." (Pltf. Mem. at 23). However, Plaintiffs have not articulated any legal theory upon which PPG or its employees can, or should, be held liable for what they did not say. The claim articulated in the Complaint is a claim based on what it is Plaintiffs say was said. While nondisclosure can be a basis for a fraud claim, no claim of fraud is presented here. Nor have Plaintiffs set forth any precedent or legal theory that would hold a manufacturer or seller of a product liable for a failure to disclose.

3.Reliance

In order to maintain the negligent misrepresentation cause of action, Plaintiffs must offer evidence of reasonable reliance on the claimed representation. This, as a matter of law, they cannot do.

It is undisputed that the paint cans had labels affixed to them which disclaimed warranties and that Casiraghi saw them. Defendants have also shown prima facie that Casiraghi was provided with a Technical Data Bulletin that expressly reported that the Aquapon High Build paint would chalk on prolonged exterior exposure. While Casiraghi testified that he could not recall seeing this document, he does not deny that it was sent.

Where there is a specific written disclaimer on the subject matter of the claimed representations, the disclaimer defeats a claim to recover damages for negligent misrepresentation. On point here is Burroughs Corp. v. Datacap, Inc., 124 AD2d 622 (2d Dept. 1986), involving counterclaims by the lessee of computer equipment against the lessor for negligent misrepresentation in the inducement of the [*21]contract. In holding that the counterclaims should be dismissed, the Court stated that "the disclaimer would defeat the defendant's claim to recover damages for negligent representation...." Likewise, in Pappas v. Harrow Stores, Inc., supra , 140 AD2d 501,504 (2d Dept. 1988), the Court stated that plaintiffs had failed to show that, "in the face of Harrow's disclaimer of responsibility for the recommended pool installers, the injured plaintiff relied on that statement so as to warrant transforming a recommendation for employment into an obligation to insure..."

Furthermore, Casiraghi testified he did not do any testing on sample panels or on sample courts before applying the paint on some 300 courts. (Casiraghi Dep. at 154). While it did take some time before the problem developed, Casiraghi did not offer any reason other than he did not have the "luxury of time" for not trying the paint on a sample court for a period of time before applying it to all the courts. (Id. at 155).

4.Causation and Damages

Defendants also contend that Plaintiffs cannot show any legally cognizable damages or that any such damages were proximately caused by the alleged misrepresentations. In view of its determination above, the Court finds it unnecessary to reach this issue.

THE LIABILITY OF THE INDIVIDUAL DEFENDANTS

Cortese and Jodzis also seek to have the action dismissed as against them.

A corporate officer, director or agent is liable for torts in which he or she participated in or authorized. See, e.g., Connell v. Hayden, 83 AD2d 30, 58 (2d Dept. 1981). That a corporate official committed a tort while acting for the corporation does not immunize the official from personal liability for the wrong that he or she committed. See Sisino v. Island Motocross of New York, 41 AD3d 462 (2d Dept. 2007); Merrill Lynch, Pierce, Fenner & Smith Inc. v. Arcturus Builders Inc., 159 AD2d 283 (1st Dept. 1990). However, to impose liability, generally there must be a showing that the corporate official knowingly participated in the wrong or, in the case of fraud, had knowledge of the misrepresentation. American Feeds and Livestock Co. v. Kalfco, Inc., 149 AD2d 836, 837 (3d Dept. 1989), leave to appeal denied, 74 NY2d 608 (1989).

Here, there is no evidence that would support a finding that Cortese participated in the making of any incorrect statement or had knowledge of any incorrect statement. Thus, even if the Court had sustained the First Cause of Action, it would have dismissed it as against Cortese. Likewise, since any warranty claim could be asserted only as against PPG, the Court would have dismissed the Second and Third Causes of Action as against Cortese and Jodzis.

DISCOVERY

In their memorandum of law in opposition to the motion, Plaintiffs contend that the motion is premature because there is more discovery that they would like to pursue. Notwithstanding that the Court previously determined that discovery was complete and notwithstanding that the Court previously determined that Plaintiffs had ample opportunity to request discovery, the Court will address this issue on its merits de novo.

Plaintiffs point out that Jodzis testified that there were tests he could have performed to test how the paint would weather. (Jodzis Dep. at 64-67). They also point out that Jodzis testified that, before he spoke with Casiraghi in April, 2003, he consulted with chemists at PPG. (Id. at 123-128). Based on this testimony, Plaintiffs argue that they should have access to the test protocols and should be able to depose the chemists. This contention is without merit.

Since it is undisputed that Jodzis did not perform any tests, the protocols for testing have no bearing on this issue. This is not a case where Plaintiffs are claiming that they had the paint tested by PPG and PPG conducted the tests negligently. Moreover, there is no claim presented that Jodzis or PPG should have conducted tests. While Plaintiffs contend that there was a failure on Defendants' part to tell Casiraghi that the Acquapon High Build would chalk more severely than the prior paints, Plaintiffs have not shown that Plaintiffs, even if they should have conducted tests and even if they should have known about the problem, can be held liable in negligent misrepresentation for a negligent nondisclosure.

As to the chemists, while Plaintiffs state that "it may be necessary" to depose one or more of the chemists in order to find out what they discussed with Jodzis and "what they could have informed him about the weathering capabilities of the Acquapon High Build if he had requested that information from them", this argument fails for the same reasons as set forth above. The issue is what Jodzis told Plaintiffs — not what Jodzis did not tell Plaintiffs.

CONCLUSION

The Court has considered the following papers in connection with this motion:

1)Notice of Motion dated August 10, 2007; Affidavit of Glenn J. Pogust, Esq., sworn to August 10, 2007, together with the exhibits annexed thereto; the affidavit of Gary R. Jodzis, sworn to August 10, 2007, together with the exhibits annexed thereto; the [*22]Deposition Transcript of the Deposition of Christopher Casiraghi taken on June 1, 2007; the Deposition Transcript of the Deposition of Gary R. Jodzis taken on June 19, 2007; the Deposition Transcript of the Deposition of Sandy Cortese taken on June 19, 2007, all submitted with proof of due service in support of the motion;

2)Memorandum of Law in Support of Defendants' Motion, dated August 10, 2007 (as revised on September 13, 2007), submitted with proof of due service n support of the motion;

3)Affirmation of Keith Dewar, Esq., dated August 22, 2007, together with the exhibits annexed thereto, and the affidavit of Christoper Casiraghi, sworn to August 22, 2007, submitted with proof of due service in opposition to the motion;

4)Memorandum of Law In Opposition to Motion, dated August 22, 2007, submitted with proof of due service in opposition to the motion;

5)Reply affidavit of Glenn J. Pogust, Esq., sworn to September 13, 2007, together with the exhibits annexed thereto, submitted with proof of due service in support of the motion;

6)Reply Memorandum of Law In Support of Defendants' Motion, dated September 13, 2007, submitted with proof of due service in support of the motion.

Based upon the foregoing papers, and for the reasons set forth above, it is hereby

ORDERED that the motion by Defendants PPG Industries, Inc., PPG Architectural Finishes, Inc., Sandy Cortese and Gary G. Jodzis for summary judgment, made pursuant to CPLR 3212, is granted and the Complaint is dismissed as against such Defendants; and it is further

ORDERED that Defendants shall submit to the Court by December 14, 2007, a proposed judgment, with such submission to be made on notice to Plaintiffs, in accordance with the provisions of 22 N.Y.C.R.R. §202.48.

The foregoing constitutes the Decision and Order of this Court.

Dated:White Plains, New York

November 14, 2007 [*23]

E N T E R :

________________________________

Alan D. Scheinkman

Justice of the Supreme Court Footnotes

Footnote 1:Reference is to the affidavit of Christopher Casiraghi, sworn to August 22, 2007 ("Casiraghi Aff.").

Footnote 2:This may be because Reilly Green came about as the result of the acquisition of a different platform tennis entity (R.J. Reilly Platform Tennis Corp.) by a prior entity owned by Casiraghi, Green Mountain Platform Tennis, Inc., which had been formed in 1992. (Casiraghi Dep. at 10-11).

Footnote 3:Reference is to the affidavit of Gary R. Jodzis, sworn to August 10, 2007 ("Jodzis Aff.).

Footnote 4:Jodzis states he visited the Lakeview Racquet Club in Valencia, while Casiraghi states that it was the Long Vue Athletic Club in Pittsburgh. It is not clear whether they are referring to the same club, but, even if not, the discrepancy is not material on this motion.

Footnote 5:As previously noted, while the Complaint is labeled "Verified Complaint", no verification appears on the copy supplied by the PPG Defendants in their moving papers and Plaintiffs have not furnished a copy. The Answer of the PPG Defendants is unverified, though a verification would have been required had the Complaint been verified. Accordingly, the Court will treat the Complaint as unverified.

Footnote 6:Plaintiffs argue that Defendants motion should be dismissed because their opening brief exceeded 25 pages in contravention of Rule 17 of the Commercial Division Rules. The Court has already dealt with this issue by directing Defendants submit to an opening brief limited to 25 pages. The original 41 page brief has not been considered by the Court.

Footnote 7:There is no requirement that proof be submitted in the form of an affidavit, as opposed to other acceptable forms, such as deposition testimony. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001).

Footnote 8:While an objection was made to the question by Plaintiffs' counsel that resulted in the answer given, the Court does not perceive that the question propounded was improper, either as form or as to substance.