| New York Cent. Mut. Fire Ins. Co. v Glider Oil Co., Inc. |
| 2011 NY Slip Op 09708 [90 AD3d 1638] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| New York Central Mutual Fire Insurance Company, as Subrogee ofRichard Frear and Another, Appellant-Respondent, v Glider Oil Company, Inc.,Respondent-Appellant, and Stewart Brockett, Doing Business as Another ConstructionCompany, Respondent. |
—[*1] Costello, Cooney & Fearon, PLLC, Syracuse (Gabrielle M. Hope of counsel), fordefendant-respondent-appellant. Petrone & Petrone, P.C., Utica (James H. Cosgriff, III, of counsel), fordefendant-respondent.
Appeal and cross appeal from an order of the Supreme Court, Onondaga County (Anthony J.Paris, J.), entered August 25, 2010. The order, granted the motion of defendant Stewart Brockett,doing business as Another Construction Company, for summary judgment and granted in part themotion of defendant Glider Oil Company, Inc. for summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying those parts of the motion of defendant Glider Oil Company, Inc. for summary judgmentdismissing the first and fourth causes of action against it and reinstating those causes of actionagainst that defendant and by denying defendant Stewart Brockett, doing business as AnotherConstruction Company, summary judgment dismissing the cross claim against him andreinstating that cross claim, and as modified the order is affirmed without costs.
Memorandum: Plaintiff, as subrogee of the owners of the property in question, Richard Frearand Barbara Frear, commenced this action on June 17, 2008 seeking to recover sums that it paidto the Frears for property damage sustained as a result of a liquid propane (LP) gas explosion.The Frears entered into a contract with defendant Stewart Brockett, doing business as AnotherConstruction Company, for the construction of a home that was to include an LP gas system. TheFrears entered into a separate contract with defendant Glider Oil Company, Inc. (Glider) for theinstallation of an LP gas tank and supply system and for the provision of all future LP gasrequired. Brockett completed construction of the home in September 2001, and Glider installedand connected the LP gas tank and supply system in October 2001. Glider returned to the homeon October 31, 2006 to service the LP gas tank, and it last supplied LP gas [*2]to the home on November 6, 2006. The home was destroyed by anLP gas explosion on March 20, 2007.
Plaintiff alleged four causes of action against defendants for negligence, breach of warranty,breach of contract and strict products liability, and each defendant cross-claimed against the otherfor contribution. Brockett moved for summary judgment dismissing the complaint against him,and Glider also moved for summary judgment dismissing the complaint against it. SupremeCourt granted Brockett's motion in its entirety and granted those parts of the motion of Gliderwith respect to the first cause of action, for negligence, the second cause of action, for breach ofwarranty, and the fourth cause of action, for strict products liability.
We reject the contention of plaintiff on its appeal that the court erred in granting that part ofBrockett's motion for summary judgment dismissing the breach of contract cause of actionagainst him as time-barred. The statute of limitations for a breach of contract cause of action issix years (see CPLR 213 [2]). In an action "against a general contractor and architect fordefective construction and design, the cause of action generally accrues upon the completion ofconstruction, meaning completion of the actual physical work" (State of New York vLundin, 60 NY2d 987, 989 [1983]; see Phillips Constr. Co. v City of New York, 61NY2d 949, 951 [1984], rearg denied 62 NY2d 646 [1984]; Caleb v Sevenson Envtl. Servs., Inc.,19 AD3d 1090, 1091 [2005]), i.e., "when the contract in question was substantiallycompleted" (Town of Poughkeepsie vEspie, 41 AD3d 701, 706 [2007], lv dismissed 9 NY3d 1003 [2007], lvdenied 15 NY3d 715 [2010]). Brockett established his entitlement to judgment as a matter oflaw with respect to the breach of contract cause of action inasmuch as he established that thehome was substantially completed in September 2001, more than six years beforecommencement of this action (see Lundin, 60 NY2d at 989; see generally Zuckermanv City of New York, 49 NY2d 557, 562 [1980]). Although there is evidence in the recordthat Brockett returned to the home in either the fall of 2001 or 2002 to complete work, thatevidence is insufficient to raise a triable issue of fact concerning the date when the home wassubstantially completed (see generally Zuckerman, 49 NY2d at 562). Indeed, the work inquestion was described as incidental and cosmetic, and it was performed in a few hours on oneday (see Lundin, 60 NY2d at 989-990; Tom L. LaMere & Assoc., Inc. v City of Syracuse Bd. of Educ., 48AD3d 1050, 1051-1052 [2008]). "[C]onstruction may be complete even though incidentalmatters relating to the project remain open" (Lundin, 60 NY2d at 989; see PhillipsConstr. Co., 61 NY2d at 951; Tom L. LaMere & Assoc., Inc., 48 AD3d at 1052). Wenote that plaintiff failed to raise any issues in its brief with respect to those parts of the ordergranting Brockett's motion for summary judgment dismissing the first, second and fourth causesof action against him, and we therefore deem any such issues abandoned (see Ciesinski vTown of Aurora, 202 AD2d 984 [1994]).
We reject plaintiff's further contention that the court erred in granting that part of Glider'smotion for summary judgment dismissing the breach of warranty cause of action against it astime-barred. The statute of limitations for a breach of warranty cause of action is four years(see UCC 2-725 [1]), and such a cause of action "against a manufacturer or distributor'accrues on the date the party charged tenders delivery of the product' " (Rissew v YamahaMotor Co., 129 AD2d 94, 99 [1987], quoting Heller v U. S. Suzuki Motor Corp., 64NY2d 407, 411 [1985]; see UCC 2-725 [2]). It is undisputed that Glider installed andconnected the LP gas tank and supply system on or about October 22, 2001, and this action wascommenced more than four years after that cause of action accrued (see UCC 2-725[2]; Heller, 64 NY2d at 411).
We agree with plaintiff, however, that the court erred in granting those parts of Glider'smotion for summary judgment dismissing the negligence and strict products liability causes ofaction against it, and we therefore modify the order accordingly. This case "falls in theborderland between tort and contract, an area [that] has long perplexed courts" (Sommer vFederal Signal Corp., 79 NY2d 540, 550 [1992]). "[A] simple breach of contract is not to beconsidered a tort unless a legal duty independent of the contract itself has been violated. . . [That] legal duty [*3]must spring fromcircumstances extraneous to, and not constituting elements of, the contract, although it may beconnected with and dependent upon the contract" (Clark-Fitzpatrick, Inc. v Long Is. R.R.Co., 70 NY2d 382, 389 [1987]; see Sommer, 79 NY2d at 551-552; Gallup v Summerset Homes, LLC, 82AD3d 1658, 1660 [2011]). " '[M]erely alleging that the breach of a contract duty arose froma lack of due care will not transform a simple breach of contract into a tort' " (Gallup, 82AD3d at 1660, quoting Sommer, 79 NY2d at 551). "In considering whether plaintiff[has] viable tort causes of action, we must also consider 'the nature of the injury, the manner inwhich the injury occurred and the resulting harm' " (id., quoting Sommer, 79NY2d at 552).
Here, plaintiff demonstrated that Glider owed a legal duty independent of its contractualobligations, thus precluding summary judgment dismissing the negligence and strict productsliability causes of action (see Sommer, 79 NY2d at 551-553; cf. Clark-Fitzpatrick,Inc., 70 NY2d at 389-390; Gallup, 82 AD3d at 1660). "A legal duty independent ofcontractual obligations may be imposed by law as an incident to the parties' relationship. [Forexample, p]rofessionals [and] common carriers . . . may be subject to tort liabilityfor failure to exercise reasonable care, irrespective of their contractual duties" (Sommer,79 NY2d at 551). "A gas company is required to use reasonable care in the handling anddistribution of gas. In view of the dangerous and explosive character of gas and its tendency toescape, a gas company has the duty to use that degree of caution which is reasonably necessary toprevent the escape or explosion of gas from its pipes and equipment" (PJI 2:185; seegenerally Schmeer v Gas Light Co. of Syracuse, 147 NY 529, 538 [1895]; Jackson v Gas Co., 2 AD3d 1104,1105 [2003]; Lockwood v Berardi, 135 AD2d 881, 882 [1987]). Thus, Glider's duty toact with reasonable care is not only a function of its contract with the Frears "but also stems fromthe nature of its services" (Sommer, 79 NY2d at 552).
In addition, "the manner in which the injury arose . . . and the resulting harm[are] both typical of tort claims" (id. at 553). The gas explosion was an " 'abrupt,cataclysmic occurrence' " (id.; see Syracuse Cablesystems v Niagara Mohawk PowerCorp., 173 AD2d 138, 140-142 [1991]; cf. Bellevue S. Assoc. v HRH Constr. Corp.,78 NY2d 282, 293-294 [1991], rearg denied 78 NY2d 1008 [1991]). Further, plaintiff "isnot seeking the benefit of [the] contractual bargain," inasmuch as the Frears suffered more thaneconomic damages (Sommer, 79 NY2d at 553; see Village of Palmyra v Hub Langie Paving, Inc., 81 AD3d 1352,1353-1354 [2011]; Syracuse Cablesystems, 173 AD2d at 142).
We agree with Glider on its cross appeal that the court erred in granting Brockett summaryjudgment dismissing the cross claim against him inasmuch as Brockett did not request that reliefin his motion papers (see FranklinCredit Mgt. Corp. v Wik, 75 AD3d 1145, 1146 [2010]; Berle v Buckley, 57 AD3d 1276,1277 [2008]; Lyon v Lyon, 259 AD2d 525 [1999]). We therefore further modify theorder accordingly. We reject the further contention of Glider on its cross appeal, however, thatthe court erred in denying that part of its motion for summary judgment dismissing the breach ofcontract cause of action against it as time-barred. Glider had recurring obligations underits contract with the Frears, i.e., to supply all LP gas required by the Frears and to maintain theLP gas supply system. " 'The general rule applicable to contract actions is that a six-year [s]tatuteof [l]imitations begins to run when a contract is breached or when one party omits theperformance of a contractual obligation' " (Stalis v Sugar Cr. Stores, 295 AD2d 939, 940[2002]). Where, as here, a contract provides for a recurring obligation, a claim for damagesaccrues each time the contract is allegedly breached (see Bulova Watch Co. v CelotexCorp., 46 NY2d 606, 611 [1979]; Sirico v F.G.G. Prods., Inc., 71 AD3d 429, 435 [2010]; AircoAlloys Div. v Niagara Mohawk Power Corp., 76 AD2d 68, 80-81 [1980]). Plaintiff allegedthat Glider breached the contract by defectively servicing and supplying the LP gas system, andthe record establishes that Glider last serviced the LP gas system in October 2006 and lastsupplied LP gas in November 2006. Present—Scudder, P.J., Centra, Fahey, Carni andSconiers, JJ.