| Gibraltar Mgt. Co., Inc. v Grand Entrance Gates, Ltd. |
| 2007 NY Slip Op 10098 [46 AD3d 747] |
| December 18, 2007 |
| Appellate Division, Second Department |
| Gibraltar Management Co., Inc., Appellant, v GrandEntrance Gates, Ltd., Also Known as Grand Entrace Gates, Ltd., et al.,Respondents. |
—[*1] The Hilpert Law Offices, Croton-on-Hudson, N.Y. (Steven Felsenfeld and Robert J. Hilpertof counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals froman order of the Supreme Court, Westchester County (Nastasi, J.), entered September 15, 2006,which granted the defendants' motion for summary judgment dismissing the complaint anddenied its cross motion for summary judgment on the issue of liability on the first cause of actioninsofar as asserted against the defendant Grand Entrance Gates, Ltd., also known as GrandEntrace Gates, Ltd.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendants' motion which was for summary judgment dismissing the first cause ofaction to recover damages for breach of contract and substituting therefor a provision denyingthat branch of the motion; as so modified, the order is affirmed, without costs or disbursements.
Contrary to the defendants' contention and the determination of the Supreme Court, theparties' contract was not one for the sale of goods subject to the four-year statute of limitations ofUCC 2-725. Rather, the contract was for the construction of completely new entrance areas at afacility owned by the plaintiff, involving the fabrication and installation ofelectronically-operated entrance gates with very specific features, as well as the construction ofnew stone pillars, a stone wall at the entrance, a pedestrian access opening, a four-inch concretebase, Belgian block banding, and a Belgian block apron and curb. Thus, the contract waspredominantly for the performance of labor and for services in connection with the constructionof new entrances at the plaintiff's real property, of which the installation of the subject gates wasmerely a part. The plaintiff's breach of contract cause of action is therefore governed by thesix-year statute of limitations set forth in CPLR 213 (2) (see generally Perlmutter v BethDavid Hosp., 308 NY 100 [1954]; Matter of F.W. Woolworth Co. [Ad-Mat, Inc.],177 AD2d 302 [1991]; Ben Constr. Corp. v Ventre, 23 AD2d 44 [1965]; Joseph P.Suchy, Inc. v Stuerzel, 82 Misc 2d 40 [1975]) and is not time-barred.
While the cause of action to recover damages for breach of contract is not time-barred, wefind unpersuasive the plaintiff's contention that summary judgment should have been awarded inits favor and against the defendant Grand Entrance Gates, Ltd., also known as Grand EntraceGates, Ltd., on that cause of action. Although the plaintiff established its prima facie entitlementto judgment as a matter of law by demonstrating, through the affidavit of an architect, that testingrevealed that certain samples of wood taken from the materials installed at its facility were pine,rather than the mahogany or redwood required by the contract (see generally Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 853 [1985]), the defendants, in opposition, raised triable issues of fact on the basisof the affidavit of the defendant Donald Gore, who stated that the composition of the gatesconformed to the contract requirements, and that the plaintiff had refused the defendants andtheir experts access to the subject premises for the purpose of examining and analyzing the gates.
The Supreme Court correctly granted that branch of the defendant's motion which was forsummary judgment dismissing the plaintiff's second cause of action to recover for unjustenrichment pursuant to a quasi-contract theory. The defendants established their entitlement tojudgment as a matter of law with respect to this cause of action by demonstrating that such arecovery is precluded by the existence of the parties' valid and enforceable written contractcovering the same subject matter (seeGoldman v Metropolitan Life Ins. Co., 5 NY3d 561 [2005]; Clark-Fitzpatrick, Inc. vLong Is. R.R. Co., 70 NY2d 382 [1987]; Erdheim v Matkins, 259 AD2d 515 [1999]).In opposition, the plaintiff failed to raise a triable issue of fact. Similarly, the defendantsestablished their entitlement to judgment as a matter of law with respect to the third cause ofaction, sounding in fraud, by demonstrating that the third cause of action did not allege theviolation of a legal duty independent of the contract itself (see New York Univ. v ContinentalIns. Co., 87 NY2d 308 [1995]; Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d382 [1987]; Del Ponte v 1910-12 Ave.U. Realty Corp., 7 AD3d 562 [2004]; Roklina v Skidmore Coll., 268 AD2d 765,766-767 [2000]), and that this cause of action was not sufficiently distinct from the breach ofcontract cause of action to constitute a separate cause of action (see Kestenbaum vSuroff, 268 AD2d 560, 561 [2000]; Rubinberg v Correia Designs, 262 AD2d 474,475 [1999]). In opposition, the plaintiff failed to raise a triable issue of fact.
The defendants' remaining contentions either are without merit or are more properly pursuedin the Supreme Court. Rivera, J.P., Spolzino, Carni and McCarthy, JJ., concur.