| Schwatka v Super Millwork, Inc. |
| 2013 NY Slip Op 03470 [106 AD3d 897] |
| May 15, 2013 |
| Appellate Division, Second Department |
| Mark Schwatka et al., Appellants, v SuperMillwork, Inc., et al., Respondents. |
—[*1] Duncan, Fish & Vogel, LLP, Smithtown, N.Y. (Richard E. Fish of counsel), forrespondents.
In an action, inter alia, to recover damages for breach of express warranty andfraudulent concealment, the plaintiffs appeal, as limited by their brief, from so much ofan order of the Supreme Court, Suffolk County (Mayer, J.), dated October 21, 2011, asgranted those branches of the defendants' motion which were pursuant to CPLR 3211 (a)(5) to dismiss their cause of action to recover damages for breach of express warrantyand pursuant to CPLR 3211 (a) (7) to dismiss their cause of action to recover damagesfor fraudulent concealment, and denied, as unnecessary, their cross motion for leave toamend their complaint.
Ordered that the appeal from so much of the order as denied, as unnecessary, theplaintiffs' cross motion for leave to amend their complaint is dismissed, as the plaintiffsare not aggrieved by that portion of the order (see CPLR 5511); and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the defendants.
Insofar as the plaintiffs appeal from that portion of the Supreme Court's order whichdenied, as unnecessary, their cross motion for leave to amend the complaint, the appeal isdismissed. Since the Supreme Court determined that the plaintiffs could amend theircomplaint a second time as of right, and since the Supreme Court considered theplaintiffs' proposed second amended complaint in deciding the defendants' motion todismiss, the plaintiffs effectively obtained the relief they sought in their cross motion,and so were not aggrieved by the portion of the order which denied their cross motion forleave to amend to the complaint as unnecessary (see generally CPLR 5501; AMS Prods., LLC v Signorile,66 AD3d 929 [2009]).
According to the plaintiffs' proposed second amended complaint, in 2002 theypurchased a house in New Suffolk which allegedly had been constructed in 1997. At thetime of construction, the original owners allegedly purchased windows and doors thatwere manufactured, distributed, and retailed by the defendants. In 2009, approximatelyseven years after the plaintiffs [*2]purchased the housefrom the original owners, the windows and doors allegedly began exhibiting visible signsof peeling, rot, and decay. In August 2010, the plaintiffs commenced this action, interalia, to recover damages for breach of express warranty and fraudulent concealment. TheSupreme Court, among other things, granted those branches of the defendants' motionwhich were pursuant to CPLR 3211 (a) (5) to dismiss the cause of action to recoverdamages for breach of express warranty and pursuant to CPLR 3211 (a) (7) to dismissthe cause of action to recover damages for fraudulent concealment.
A cause of action alleging breach of warranty is governed by a four-year statute oflimitations (see UCC 2-725 [1]; Ito v Marvin Lbr. & Cedar Co., 54 AD3d 1001, 1002[2008]; Weiss v PolymerPlastics Corp., 21 AD3d 1095 [2005]). Generally, a breach of warranty actionaccrues "when tender of delivery is made" (UCC 2-725 [2]; see Parrino vSperling, 232 AD2d 618 [1996]; Potomac Ins. Co. v Rockwell Intl. Corp.,94 AD2d 763 [1983]). As an exception to this general rule, the UCC provides that"where a warranty explicitly extends to future performance of the goods and discovery ofthe breach must await the time of such performance," then "the cause of action accrueswhen the breach is or should have been discovered" (UCC 2-725 [2]; see Wyandanch Volunteer Fire Co.,Inc. v Radon Constr. Corp., 19 AD3d 590 [2005]; Imperia v MarvinWindows of N.Y., 297 AD2d 621, 623 [2002]). "A warranty of future performanceis one that guarantees that the product will work for a specified period of time" (St.Patrick's Home for Aged & Infirm v Laticrete Intl., 264 AD2d 652, 657 [1999];see Wyandanch Volunteer Fire Co., Inc. v Radon Constr. Corp., 19 AD3d at591). However, "[w]arranties to repair or replace [a] product in the event that it fails toperform, without any promise of performance, do not constitute warranties of futureperformance" (St. Patrick's Home for Aged & Infirm v Laticrete Intl., 264 AD2dat 657; see Shapiro v Long Is. Light. Co., 71 AD2d 671 [1979]).
Here, the subject warranty did not guarantee that the windows and doors would befree from defects for any specified period of time. Instead, it guaranteed that if any defectin manufacturing, materials or workmanship occurred within 10 years, then the productwould be repaired or replaced, or the purchase price refunded. As such, the SupremeCourt properly determined that the warranty did not extend to future performance(see Gianakakos v Commodore Home Sys., 285 AD2d 907 [2001]; Hull vMoore's Mobile Homes Stebra, 214 AD2d 923 [1995]; Shapiro v Long Is. Light.Co., 71 AD2d at 671; cf. St. Patrick's Home for Aged & Infirm v Laticrete Intl.264 AD2d at 652-659; Dormitory Auth. of State of N.Y. v Baker, Jr. ofN.Y., 218 AD2d 515 [1995]; Mittasch v Seal Lock Burial Vault, 42 AD2d573 [1973]), and that the plaintiffs' causes of action alleging breach of express warrantyaccrued in 1997, when the windows and doors were allegedly delivered (seeUCC 2-725). Since the action was commenced in August 2010, more than four yearsafter the accrual date for breach of warranty actions, the Supreme Court properly grantedthat branch of the defendants' motion which was pursuant to CPLR 3211 (a) (5) todismiss the plaintiffs' cause of action to recover damages for breach of express warranty.
Furthermore, the Supreme Court properly granted that branch of the motion whichwas pursuant to CPLR 3211 (a) (7) to dismiss the plaintiffs' cause of action to recoverdamages for fraudulent concealment. In pleading a cause of action to recover damagesfor fraud, "the circumstances constituting the wrong shall be stated in detail" (CPLR3016 [b]; see High Tides, LLCv DeMichele, 88 AD3d 954, 957 [2011]; Daly v Kochanowicz, 67 AD3d 78, 89 [2009]). A cause ofaction sounding in fraud must allege that the defendant knowingly misrepresented orconcealed a material fact for the purpose of inducing another party to rely upon it, andthat the other party justifiably relied upon such misrepresentation or concealment to hisor her own detriment (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 421[1996]; Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403, 406-407[1958]; Deutsche Bank Natl.Trust Co. v Sinclair, 68 AD3d 914, 916 [2009]; Colasacco v Robert E. LawrenceReal Estate, 68 AD3d 706, 708 [2009]). "A cause of action to recover damagesfor fraudulent concealment requires, in addition to allegations of scienter, reliance, anddamages, an allegation that the defendant had a duty to disclose material information andthat it failed to do so" (High Tides, LLC v DeMichele, 88 AD3d at 957; see Consolidated Bus Tr., Inc. vTreiber Group, LLC, 97 AD3d 778 [2012]). Here, the conclusory allegations inthe plaintiffs' complaint were insufficient to meet the pleading requirements of CPLR3016, in that the complaint was devoid of any factual details regarding the manner inwhich the defendants knowingly concealed their alleged knowledge of the defects in thewindows and doors (seeMancuso v Rubin, 52 AD3d 580 [2008]; Jae Heung Yoo v Se KwangKim, 289 [*3]AD2d 451, 452 [2001]). Accordingly,the Supreme Court properly granted that branch of the defendants' motion which waspursuant to CPLR 3211 (a) (7) to dismiss the plaintiffs' cause of action to recoverdamages for fraudulent concealment. Dillon, J.P., Balkin, Austin and Cohen, JJ., concur.[Prior Case History: 33 Misc 3d 1213(A), 2011 NY Slip Op 51912(U).]