762 N.Y.S.2d 92 | N.Y. App. Div. | 2003
—In an action, inter alia, to recover damages for breach of contract, the defendant Kings Ready Mix, Inc., appeals from so much of an order of the Supreme Court, Kings County (R.E. Rivera, J.), dated June 6, 2002, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it and granted that branch of the plaintiff’s cross motion which was for partial summary judgment on the issue of liability insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, that branch of the cross motion which was for partial summary judgment on the issue of liability insofar as asserted against the appellant is denied, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendants is severed.
The economic loss rule provides that tort recovery in strict products liability and negligence against a manufacturer is not available to a downstream purchaser where the claimed losses flow from damage to the property that is the subject of the contract and personal injury is not alleged or at issue (see Bocre Leasing Corp. v General Motors Corp., 84 NY2d 685, 694 [1995]; 7 World Trade Co. v Westinghouse Elec. Corp., 256 AD2d 263, 264 [1998]; see also Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., 272 AD2d 360, 361 [2000]). The aforementioned rule is applicable even where the allegedly defective product is or may be “unduly hazardous” (Bocre Leasing Corp. v General Motors Corp., supra at 691; see 7 World Trade Co. v Westinghouse Elec. Corp., supra). Further, the economic loss rule is applicable to economic losses to the product itself, as well as consequential damages resulting from the defect (see Bocre Leasing Corp. v General Motors Corp., supra; 7 World Trade Co. v Westinghouse Elec. Corp., supra). In the case at bar, the plaintiff merely alleged economic losses with respect to the removal, reinstallation, and repair of the first floor of the subject building. Accordingly, the economic loss rule barred the plaintiff’s strict product liability and negligence claims against KRM.
Contrary to the plaintiff’s contention, it could not assert a breach of contract claim against KRM as a third-party beneficiary of the contract between KRM and Commercial since the record is devoid of any evidence that the parties intended that
In light of our determination, we need not reach the plaintiff’s remaining contention. Smith, J.P., S. Miller, Crane and Cozier, JJ., concur.