Schwatka v Super Millwork, Inc.

[*1] Schwatka v Super Millwork, Inc. 2011 NY Slip Op 51912(U) Decided on October 21, 2011 Supreme Court, Suffolk County Mayer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 21, 2011
Supreme Court, Suffolk County

Mark Schwatka and Diana Schwatka, Plaintiffs,

against

Super Millwork, Inc., Riverhead Building Supply Corp., Super Enterprises-USA, Inc., and Marvin Windows and Doors, Defendants.



10-29614



WICKHAM, BRESSLER, GORDON & GEASA

Attorney for Plaintiffs

275 Broad Hollow Road, Suite 111

Melville, New York 11747

DUNCAN, FISH & VOGEL, L.L.P.

Attorney for Defendants

317 Middle Country Road, Suite 5

Smithtown, New York 11787

Peter H. Mayer, J.

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing [*2]papers, the motion is decided as follows: it is

ORDERED that the motion by defendants for dismissal of plaintiffs' complaint is granted; and it is further

ORDERED that the cross motion by plaintiffs for leave to serve an amended complaint is denied, as unnecessary.

Plaintiffs Mark Schwatka and Diana Schwatka commenced the instant action for the recovery of damages they incurred as a result of allegedly faulty windows and doors on residential premises they purchased in 2002. The premises were constructed by its previous owners during 1997, and the windows and doors were installed at that time. The windows and doors at issue were manufactured by defendant Marvin Lumber and Cedar Company, distributed by defendants Super Millwork, Inc. and Super Enterprises-USA, Inc., and retailed by defendant Riverhead Building Supply (herein collectively known "defendants"). Plaintiffs' complaint alleges, inter alia, that the windows and doors were defectively manufactured such that they began rotting and decaying within 10 years of installation, that defendants knew of such defects and fraudulently concealed them from plaintiffs' predecessors in title, and that plaintiffs would not have purchased the subject premises if such defects had been disclosed. It further alleges that defendants breached the implied and express warranties on the merchandise, that they failed to adequately repair and/or replace the merchandise despite notice of the defects, and that they are liable for consequential and punitive damages as a result of their conduct.

Defendants now move to dismiss plaintiffs' complaint pursuant to CPLR 3211 (a) (3), (5) and (7). Defendants argue that plaintiffs action is time barred, as the purported defects occurred after the expiration of the applicable statute of limitations and the ten-year warranty covering the subject merchandise. They further assert that plaintiffs' lack the privity of interest required to bring the action and failed to plead the elements of fraud with the specificity required by CPLR 3016 (b). Plaintiffs oppose the motion, arguing that their action was timely commenced, and that as end users of the merchandise, they are covered by the terms of defendants' express warranty. Plaintiffs further argue that no privity is required for their claims based upon fraud and warranty by advertising. In response to defendants' motion, plaintiffs also cross move for leave to amend their complaint pursuant to CPLR 3025 (a). Plaintiffs submit a copy of the proposed amended complaint in support of their cross motion.

The warranty covering the subject windows and doors, entitled "The Marvin Windows & Doors Ten-year Limited Warranty" states, in pertinent part, that

[t]his limited warranty is extended to all end users of Marvin Windows and Doors. Your Marvin product is warranted to be free from defects in manufacturing, materials and workmanship. . . This limited warranty is valid for ten (10) years from the date your Marvin product was originally purchased and is subject to further conditions and exclusions. . . We shall in no event be liable for any consequential or incidental damages of any kind, however occasioned, whether by [*3]negligence or otherwise. . . The foregoing warranty is in lieu of all other express warranties.

Initially, the Court notes that plaintiffs' cross motion for leave to serve an amended complaint is denied, as unnecessary. The institution of defendants' motion pursuant to CPLR 3211(a) extended plaintiffs' time to serve a responsive pleading until 10 days after service of a notice of entry of the order deciding the motion (see CPLR 3025(a); Johnson v Spence, 286 AD2d 481, 730 NYS2d 334 [2d Dept 2001]; STS Mgt. Dev. v New York State Dept. of Taxation & Fin., 254 AD2d 409, 678 NYS2d 772 [2d Dept 1998]). Thus, plaintiffs had a right to amend their complaint during the pendency of defendants' motion to dismiss (see Perez v Wegman Cos., 162 AD2d 959, 557 NYS2d 779 [4th Dept 1990]; Lipary v Posner, 96 Misc 2d 578, 409 NYS2d 363 [Sup. Ct. Monroe County, 1978]). However, contrary to plaintiffs' assertion that such service rendered defendants' motion moot, "[i]t is the rule in the Second Department that a motion to dismiss which is addressed to the merits may not be defeated by an amended pleading (Livadiotakis v Tzitzikalakis, 302 AD2d 369, 370, 753 NYS2d 898 [2d Dept 2003]; see also Treano v Fine, 17 AD3d 449, 793 NYS2d 451 [2d Dept 2005]). Moreover, a defendant whose motion is addressed to the merits, retains the option of applying their motion to the amended pleadings (see Sage Realty Corp. v Proskauer Rose, 251 AD2d 35, 675 NYS2d 14, rev'd on other grounds at 91 NY2d 30, 66 NYS2d 985 [1997]; see also, 49 W. 12 Tenants Corp. v Seidenberg, 6 AD3d 243, 774 NYS2d 339 [1st Dept 2004]; DiPasquale v Security Mut. Life Ins. Co. of NY, 293 AD2d 394, 740 NYS2d 626 [1st Dept 2002]). A motion to dismiss based upon expiration of the statute of limitations and lack of standing, is addressed to the merits of the pleadings (see Livadiotakis v Tzitzikalakis, supra). Therefore, the Court grants defendants' request to apply their motion seeking dismissal of plaintiffs' complaint to the amended pleading.

Plaintiffs' cause of action for breach of implied warranty is dismissed pursuant to CPLR 3211(a)(3). "UCC §2-318 does not permit a plaintiff, not in privity, to recover upon the breach of an implied warranty of merchantability unless the claim of the remote user is for personal injuries. A cause of action based upon breach of an implied warranty does not exist where there is no seller-buyer relationship or sales contract between the parties, and the plaintiff is not [an] injured person' " (Hole v General Motors Corp., 83 AD2d 715, 716, 422 NYS2d 638 [3d Dept 1981]; see also Lexow & Jenkins v Hertz Commercial Leasing Corp., 122 AD2d 25, 504 NYS2d 192 [2d Dept 1986]; Miller v General Motors Corp., 99 AD2d 454, 471 NYS2d 280 [1st Dept 1984]). Here, it is undisputed that plaintiffs did not share a buyer-seller relationship with defendants as the windows and doors were purchased and installed by the original owners of the subject premises. It is equally clear that plaintiffs were not physically injured as a result of any defect with the merchandise. Plaintiffs, therefore, have no standing to commence an action based upon the alleged breach of implied warranty of merchantability covering the subject merchandise (see Adirondack Combustion Techs., Inc. v Unicontrol, Inc., 17 AD3d 825, 793 NYS2d 576 [3d Dept 2005]; Arell's Fine Jewelry, Inc. v Honeywell Inc., 170 AD2d 1013, 566 NYS2d 505 [4th Dept 1991]).

Plaintiffs' cause of action for breach of an express warranty is dismissed pursuant to CPLR 3211(a)(5). A breach of express warranty claim is deemed to accrue upon delivery of the [*4]allegedly defective product, unless the warranty explicitly extends to the products' future performance, i.e. that the product would work for a specified amount of time ( UCC 2-725; see Hull v Moore's Mobile Homes Stebra, 214 AD2d 923, 625 NYS2d 710 [3d Dept 1995]; Liecar Liqs. v CRS Bus. Computers, 205 AD2d 868, 613 NYS2d 298 [3d Dept 1994]). Here, the express warranty provided by defendants did not guarantee future performance of the windows and doors for a specified time and, therefore, did not toll the four-year statute of limitations until discovery of the claimed defect (see Weiss v Herman, 193 AD2d 383, 597 NYS2d 52 [1st Dept 1993]). Thus, the claim for breach of express warranty accrued upon delivery of the windows and doors in 1997 (see Gianakakos v Commodore Home Sys., 285 AD2d 907, 727 NYS2d 806 [3d Dept 2001]), and the cause of action is time-barred as it was commenced after the expiration of both the statute of limitations and the ten-year express warranty period (see e.g. Potomac Ins. Co. v Rockwell Intl Corp., 94 AD2d 763, 462 NYS2d 707 [2d Dept 1983]).

In opposition, plaintiffs failed to aver evidentiary facts which establish that the action was timely commenced or which raised an issue of fact as to its timeliness (see Lessoff v 26 Ct. St. Assoc., LLC, 58 AD3d 610, 872 NYS2d 144 [2d Dept 2009]; Savarese v Shatz, 273 AD2d 219, 220, 708 NYS2d 642 [2d Dept 2000]). Significantly, the case of Imperia v Marvin Windows of NY, 297 AD2d 621, 747 NYS2d 35 (2d Dept 2002) is distinguishable, as plaintiffs share no privity with defendants (see Skyes v RFD Third Ave 1 Assoc., LLC, 67 AD3d 162, 884 NYS2d 745 [1st Dept 2009]; Ford v Sivilli, 2 AD3d 773, 770 NYS2d 414 [2d Dept 2009]), and the amended complaint is bereft of any allegations that defendants personally relied on any verbal or printed misrepresentations guaranteeing the future performance of the windows and doors (see Gianakakos v Commodore Home Sys., supra). In light of the untimely nature of plaintiffs' breach of express warranty claim, the second cause of action in their amended complaint, asserting a third-party beneficiary claim for damages based on the delivery of defective merchandise to their "predecessors in title," is likewise dismissed (see DeLine v CitiCapital Commercial Corp., 24 AD3d 1309, 807 NYS2d 247 [4th Dept 2005]; compare Dormitory Auth. of State of NY v Michael Baker, Jr., of NY, 218 AD2d 515, 517, 630 NYS2d 313 [1st Dept 1995]).

Plaintiffs' cause of action for damages based upon fraudulent concealment also is dismissed. CPLR 3016 (b) requires that a party seeking to assert a cause of action for fraud must set forth the circumstances constituting the wrong with particularity (see National Union Fire Ins. Co. of Pittsburgh, Pa v Christopher Assoc., 257 AD2d 1, 691 NYS2d 35 [1st Dept 1999]; Bank Leumi Trust Co. of NY v D'Evori Intl., 163 AD2d 26, 558 NYS2d 909 [1st Dept 1990]). To plead a cause of action for fraudulent misrepresentation, a plaintiff must show misrepresentation or a material omission of fact which was false and known to be false by the defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance by that party, and injury as a result of such reliance (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 646 NYS2d 76 [1996]; Chanel Master Corp. v Aluminum Ltd. Sales, 4 NY2d 403, 176 NYS2d 259 [1958]; Deutsche Bank Natl. Trust Co. v Sinclair, 68 AD3d 914, 891 NYS2d 445 [2d Dept 2009]). A cause of action for fraudulent concealment requires, in addition to the four foregoing elements, an allegation that defendants had a duty to disclose material information [*5]and failed to do so (see Wiscovitch Assocs. Ltd. v Philip Morris Cos., 193 AD2d 542, 598 NYS2d 193 [1st Dept 1993]).

Here, accepting plaintiffs' allegations as true and affording them the benefit of every possible inference, plaintiffs have failed to allege with the particularity necessary to survive the heightened pleading requirements of CPLR 3016 any specific misrepresentation by defendants upon which they justifiably relied (see Bank Leumi Trust Co. of NY v D'Evori Intl., supra). Plaintiffs not only lack the privity required to establish such reliance (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 919 NYS2d 465 [2011]), they failed to allege the existence of any confidential or fiduciary relationship with defendants requiring their disclosure of any material information concerning alleged defects to the doors and windows (see Wiscovitch Assocs. Ltd. v Philip Morris Companies, Inc., supra; George Cohen Agency v Donald S. Perlman Agency, 114 AD2d 930, 495 NYS2d 408 [1985], lv denied 68 NY2d 603, 506 NYS2d 1025 [1986]). The failure of plaintiffs' cause of action for fraud also mandates dismissal of their demand for punitive damages, as a demand for punitive damages does not amount to a separate cause of action for pleading purpose (see Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 612 NYS2d 339 [1994]; see also Rose Lee Mfg. v Chemical Bank, 186 AD2d 548, 588 NYS2d 408 [2d Dept 1992]; Goldstein v Winard, 173 AD2d 201, 569 NYS2d 425 [1st Dept 1991]). Accordingly, defendants' motion for dismissal of the amended complaint is granted.

Dated:

PETER H. MAYER, J.S.C.