86 A.D.2d 279 | N.Y. App. Div. | 1982
OPINION OF THE COURT
The facts underlying this action are undisputed. In October, 1971, while traveling through Pennsylvania, plaintiff Evelyn McCarthy, then a New York resident, was stricken
Plaintiffs commenced their action against defendants on October 23, 1975. Mrs. McCarthy sought recovery under four legal theories: (1) negligence, (2) breach of warranty, (3) negligence by reason of alleged statutory violations, and (4) strict liability. In a separate cause of action, plaintiff Florence McCarthy, Mrs. McCarthy’s husband, sought damages for loss of services. By their bill of particulars, it was alleged that Mrs. McCarthy’s injuries first manifested themselves on November 1, 1971.
Thereafter, defendants moved to dismiss the complaint and for summary judgment on the ground that the action was not timely brought within the limitation period prescribed by CPLR 214 (subd 5), which requires that actions to recover for personal injury be commenced within three years. Plaintiffs conceded that the causes of action based on negligence, statutory violations and strict liability were untimely and, accordingly, on June 2, 1976, Special Term dismissed said causes of action. It refused, however, to dismiss the cause of action that was based upon breach of warranty and the derivative action, holding that the four-year Statute of Limitations prescribed by section 2-725 of the Uniform Commercial Code was applicable thereto. The defendants thereupon appealed and this court affirmed (McCarthy v Bristol Labs., Div. of Bristol-Myers Co., 61 AD2d 196).
Discovery proceedings were thereafter initiated. The facts developed during said proceedings disclosed that Montefiore Hospital had made no direct purchases of either Kantrex or Keflin from the defendants. Lilly’s Keflin was sold to independent drug wholesalers and was then resold to Central Pharmacy, the drug marketing department of
Accordingly, and based on the facts adduced through the discovery procedures which demonstrated that no contract for sale existed, Lilly moved for leave to renew its motion for summary judgment, and, upon the granting of such leave, for summary judgment on plaintiffs’ remaining cause of action. Defendant Bristol cross-moved for similar relief on the same ground.
Plaintiffs did not controvert the contract for sale issue before Special Term but argued that: (a) defendants were attempting to relitigate the Statute of Limitations applicable to their breach of warranty claim which had already been determined by this court; and (b) in addition to the application of the procedural four-year New York statute, since the claim arose in Pennsylvania, the substantive law of that State, which permits an action in breach of warranty in the absence of privity, should be applied. Special Term concluded that plaintiffs were correct in their assertions that neither the absence of privity nor the Statute of Limitations were valid defenses. It is from this ruling that defendants appeal. We reverse.
Special Term improperly concluded that this court’s determination upon the prior appeal stood for the proposition
“A second assumption which underlies the conclusion that the four-year time limit of the code applies as against the general time limit of the CPLR, is that a ‘contract for sale’ is here involved. This assumption is more debatable, because the complaint alleges merely that the defendants ‘sold and distributed’ the drugs * * * and that the plaintiff wife ‘did take’ the drugs. The affidavits of both sides submitted on the motion are not any more informative as to the facts * * * On this state of the record, we believe that a sale of the drugs to the plaintiff wife may not be summarily ruled out.
“[Wlhether under the circumstances of this case, the plaintiff as a patient in a hospital receiving medication may be assimilated to the status of a remote user, or is a direct purchaser from the manufacturer or from the hospital, are all issues which should not be determined on the bare pleadings.” (61 AD2d 196, 200, 203; emphasis supplied.)
Clearly, a limitations defense was not foreclosed in the event that a contract of sale was not shown to exist.
In determining the limitations period applicable to the case at bar, we must look to New York law. CPLR 202 provides: “An action based upon a cause of action accruing
In addition, for conflicts of law purposes, the question of how an action is to be characterized must be made in accordance with the laws of the forum State (Restatement, Conflict of Laws 2d, § 124, and comment thereto; Leflar, American Conflicts Law [3d ed], §§ 122, 127; see Martin v Dierck Equip. Co., 43 NY2d 583, 589). As we are thus required to look to the law of New York for the purpose of correctly characterizing Mrs. McCarthy’s claim, denominated as a breach of warranty cause of action, before determining the appropriate limitations period, an analysis of Pennsylvania substantive and statutory law is inappropriate and Special Term was in error in holding to the contrary.
In determining the applicable Statute of Limitations, the gravamen or essence of the action is examined, not merely its nomenclature (Western Elec. Co. v Brenner, 41 NY2d 291, 293; Brick v Cohn-Hall-Marx Co., 276 NY 259, 264; Staffen v City of Rochester, 80 AD2d 16, 18). Based upon
Accordingly, the order of Special Term should be reversed and defendants’ renewed motions to dismiss the second and fifth causes of action granted.
Lazer, J. P., Mangano and O’Connor, JJ., concur.
Order of the Supreme Court, Westchester County, dated October 20, 1980, reversed, on the law, without costs or disbursements, and defendants’ motions to renew and to
. Sued in this action as Bristol Laboratories, Division of Bristol-Myers Company.
. We do not today reach the issue of whether there has been a sale of a drug by a hospital where the hospital furnishes medication to a patient, but note that the Third Department has held that as to individual defendant physicians, the furnishing of medication is an incidental feature of the services rendered and therefore there is no sale within the meaning of the Uniform Commercial Code so as to give rise to any express or implied warranties (Osborn v Kelley, 61 AD2d 367). See, also, Perlmutter v Beth David Hosp. (308 NY 100), holding that as to the furnishing of blood for a transfusion, such transaction “could not be characterized in part or in its underlying nature as one for the sale of goods, for [plaintiff] had checked into the hospital to restore her health, not to purchase blood.” (Milau Assoc. v North Ave. Dev. Corp., 42 NY2d 482, 486.)
. The warranty cause of action at bar arose prior to the September 1, 1975 amendment to section 2-318 of the Uniform Commercial Code, which altered that class of persons other than an original purchaser, to whom a seller’s warranty, whether express or implied, may extend (L 1975, ch 774, § 1).
. Even if we accepted and applied Pennsylvania substantive law with relation to the characterization of the action, a different result would not be reached. (See Salvador v Atlantic Steel Boiler Co., 256 Pa Super Ct 330.)
. Accrual dates in the instant action for the purpose of either the three-year personal injury Statute of Limitations (CPLR 214, subd 5) running from the date of injury, or the four-year breach of warranty Statute of Limitations, running from “tender of delivery” (see Uniform Commercial Code, § 2-725, subd [2]) coincide.