| New York Methodist Hosp. v Carrier Corp. |
| 2009 NY Slip Op 09197 [68 AD3d 830] |
| December 8, 2009 |
| Appellate Division, Second Department |
| New York Methodist Hospital, Appellant, v CarrierCorporation, Respondent. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forrespondent.
In an action, inter alia, to recover damages for negligent design and manufacture and breachof contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Knipel, J.),dated September 3, 2008, which granted those branches of the defendant's motion which werepursuant to CPLR 3211 (a) to dismiss the complaint, and denied its cross motion, in effect, forleave to replead so as to assert causes of action sounding in, among other things, fraud,conversion, and negligent misrepresentation.
Ordered that the order is affirmed, with costs.
"The economic loss doctrine provides that tort recovery in strict products liability andnegligence against a manufacturer is not available to a downstream purchaser where the claimedlosses flow from damage to the property that is the subject of the contract, and personal injury isnot alleged or at issue" (Weiss vPolymer Plastics Corp., 21 AD3d 1095, 1096 [2005]; see Bocre Leasing Corp. vGeneral Motors Corp. [Allison Gas Turbine Div.], 84 NY2d 685, 686, 689 [1995]; Atlas Air, Inc. v General Elec. Co., 16AD3d 444, 445 [2005]; Amin Realty v K & R Constr. Corp., 306 AD2d 230, 231[2003]). This rule applies both to economic losses with respect to the product itself andconsequential damages resulting from the alleged defect (see Weiss v Polymer Plastics Corp.,21 AD3d at 1096; Atlas Air, Inc. v General Elec. Co., 16 AD3d at 445; AminRealty v K & R Constr. Corp., 306 AD2d at 231). Here, the plaintiff merely allegedeconomic loss with respect to the subject double-effect absorption chiller (hereinafter thechiller), and consequential damages resulting from its failure to operate properly. Accordingly,the Supreme Court properly determined that the economic loss rule barred the plaintiff'stort-based causes of action (see Weiss v Polymer Plastics Corp., 21 AD3d at 1096;Atlas Air, Inc. v General Elec. Co., 16 AD3d at 445; Amin Realty v K & R Constr.Corp., 306 AD2d at 231).
Uniform Commercial Code § 2-725 (1) provides that "[a]n action for breach of anycontract for sale must be commenced within four years after the cause of action has accrued" (see Ito v Marvin Lbr. & Cedar Co., 54AD3d 1001, 1002 [2008]; Wyandanch Volunteer Fire Co., Inc. v Randon Constr. Corp., 29 AD3d685, 687 [2006]; Imperia v Marvin Windows of N.Y., 297 AD2d 621, 623 [2002]).The [*2]cause of action usually accrues upon the delivery of thegoods; however, an exception exists "where a warranty explicitly extends to future performanceof the goods and discovery of the breach must await the time of such performance" (UCC 2-725[2]; see Ito v Marvin Lbr. & Cedar Co., 54 AD3d at 1002; Wyandanch VolunteerFire Co., Inc. v Randon Constr. Corp., 29 AD3d at 687; Imperia v Marvin Windows ofN.Y., 297 AD2d at 623). In such instance, the cause of action accrues "when the breach is orshould have been discovered" (UCC 2-725 [2]).
Contrary to the plaintiff's contention, the exception for a warranty of future performancedoes not apply to the facts of this case (cf. Imperia v Marvin Windows of N.Y., 297AD2d at 623). Moreover, the parties' contract provided that the chiller would be subject to aone-year warranty (see UCC 2-725 [1]). As the tender of delivery occurred more thanone year before the plaintiff commenced the instant action, the Supreme Court properlydetermined that the plaintiff's contract-based causes of action were time-barred (see UCC2-725 [1]; Ito v Marvin Lbr. & Cedar Co., 54 AD3d at 1002; Wyandanch VolunteerFire Co., Inc. v Randon Constr. Corp., 29 AD3d at 687; Imperia v Marvin Windows ofN.Y., 297 AD2d at 623).
The plaintiff's remaining contentions are without merit (see generally Clark v Pfizer, Inc., 64 AD3d 536 [2009]). Mastro,J.P., Florio, Balkin and Leventhal, JJ., concur.