| Ito v Marvin Lbr. & Cedar Co. |
| 2008 NY Slip Op 07214 [54 AD3d 1001] |
| September 30, 2008 |
| Appellate Division, Second Department |
| Setsuo Ito, Appellant, v Marvin Lumber and CedarCompany, Respondent. |
—[*1] Greenberg Freeman, LLP, New York, N.Y. (Sanford H. Greenberg of counsel), forrespondent.
In an action to recover damages for breach of express and implied warranties, the plaintiffappeals from an order of the Supreme Court, Suffolk County (Pitts, J.), dated March 1, 2007,which granted the defendant's motion pursuant to CPLR 3211 (a) (1), (5) and (7) to dismiss thecomplaint.
Ordered that the order is affirmed, with costs.
In 1990 the plaintiff purchased "Marvin windows and doors" for installation in his house inBridgehampton. He alleged that, at the time he purchased those products, a saleswoman at thestore told him that they came with a "lifetime warranty." The plaintiff, however, never receivedanything in writing about such a lifetime warranty, and the written contract provided only for aone-year warranty. In 1997 the plaintiff became aware that some of the windows and doors weredefective, and he contacted the defendant, a Minnesota company that had manufactured theproduct. In December 2000, after extensive correspondence, the defendant began to repair andreplace the defective windows and doors, but inexplicably stopped work in April 2001.
In 2006 the plaintiff commenced this action against the defendant, seeking damages forbreach of express and implied warranties. In lieu of an answer, the defendant moved to dismissthe complaint pursuant to CPLR 3211 (a) (1), (5) and (7), arguing that the statute of limitationsfor the plaintiff's claims had expired. The Supreme Court granted the defendant's motion. Weaffirm.[*2]
Claims for breach of warranty are governed by afour-year statute of limitations from the accrual of the claim (see UCC 2-725; Ito v Dryvit Sys., Inc., 16 AD3d554, 555 [2005]; cf. Gibraltar Mgt.Co., Inc. v Grand Entrance Gates, Ltd., 46 AD3d 747 [2007]). A cause of action allegingbreach of warranty accrues when the breach occurs, and "[a] breach of warranty occurs whentender of delivery is made, except that where a warranty explicitly extends to future performanceof the goods and discovery of the breach must await the time of such performance the cause ofaction accrues when the breach is or should have been discovered" (UCC 2-725 [2]; see Wyandanch Volunteer Fire Co., Inc. vRandon Constr. Corp., 29 AD3d 685, 687 [2006]). Here, the windows and doors werepurchased and delivered in 1990. Thus, unless there was a warranty of future performance, thestatute of limitations for breach of warranty expired in 1994. If there was a lifetime warranty, thecause of action would not have accrued until 1997, when the plaintiff discovered the defects. Inthat event, the statute of limitations expired in 2001. Moreover, even assuming that the defendantis estopped from pleading the statute of limitations for the period during which it was incommunication with the plaintiff and did work to replace or repair the defective goods, therebyinducing him not to commence an action (see General Obligations Law § 17-103[4] [b]; Park Assoc. v Crescent Park Assoc., 159 AD2d 460, 461 [1990]; State ofN.Y. Higher Educ. Servs. Corp. v Langus, 140 AD2d 792, 793 [1988]), that period ended in2001 when the defendant stopped work, and the statute of limitations expired in 2005. Theplaintiff, however, did not commence this action until 2006. Consequently, under any view of thefacts here, the plaintiff's action was barred by the statute of limitations (see Ito v Dryvit Sys.,Inc., 16 AD3d at 555).
The plaintiff's remaining contention is without merit. Fisher, J.P., Balkin, McCarthy andChambers, JJ., concur.