118 Misc. 2d 1008 | N.Y. City Civ. Ct. | 1983
OPINION OF THE COURT
Defendants Alumo Products Co., Inc. (Alumo) and Bison Plumbing City (Bison) move for partial summary judgment dismissing plaintiffs’ sixth, seventh and eighth causes of action on the basis of the Statute of Limitations,
The facts as alleged in plaintiffs’ complaint are as follows: that on August 21, 1972 plaintiff Richard Szrama purchased a bathtub enclosure unit, manufactured by Alumo, from Bison. At the time of purchase, plaintiffs allege that plaintiff Richard Szrama believed the unit to be made of tempered glass, but, in fact, it was made of ordinary glass. Thereafter, plaintiffs installed the unit in their home, and on September 29, 1979, plaintiff Richard Szrama was injured while showering.
Plaintiffs’ sixth, seventh and eighth causes of action are grounded in breach of warranty, and, therefore, are controlled by New York’s enactment of the Uniform Commercial Code. Specifically, section 2-318 governs the parties who may bring an action based upon breach of warranty and section 2-725 provides a Statute of Limitations on breach of warranty actions of four years. Defendant Alumo contends that the version of section 2-318 in effect at the time the goods in question were sold to the plaintiff prevents the plaintiff from maintaining an action against it, since that section extended the warranty only to the buyer from the seller whose warranty is being sued upon, and that buyer’s family and guests. Under the earlier version of section 2-318, Alumo argues, plaintiffs may not maintain an action against Alumo since they neither bought directly from Alumo, nor are they members of the family or guests of the party who did purchase from Alumo, namely, Bison. Plaintiffs argue that the amendment of section 2-318, effective September 1, 1975, is to apply retroactively, as a remedial statute. Although only the Third Department has had an opportunity to decide directly on the retroactive application of section 2-318, and it found against retroactivity (Fisher v Graco, Inc., 81 AD2d 209), the Court of Appeals, in dicta, has indicated that it will not retroactively apply the amendment (Martin v Dierck Equip. Co., 43 NY2d 583, 591). Consequently, de
To examine defendant’s claim that the causes of action in breach of warranty are time barred, it is necessary to determine when the cause of action accrued, so as to determine whether the Statute of Limitations has run. If the cause of action accrues on the date of sale, the action is time barred; if the cause of action accrues at the date of injury, the action is not time barred. Subdivision (2) of section 2-725 provides that the cause of action accrues at the date of delivery unless the warranty extends to future performance, under which circumstances the cause of action would accrue at the date of discovery of the breach. Plaintiffs contend that subdivision (2) of section 2-725 does not apply to an action for personal injury, or alternatively, that if it does apply, there is a factual issue as to whether the warranties in this case extended to future performance. To examine plaintiffs’ contention that subdivision (2) of section 2-725 does not apply, it is necessary to examine the history of causes of action in breach of warranty and in strict liability in tort. New York enacted the Uniform Commercial Code in 1965, but did not adopt the cause of action in strict liability in tort until the case of Codling v
The application of subdivision (2) of section 2-725 does provide for an exception when the warranty extends to future performance. Plaintiffs have adequately evidenced the existence of a factual dispute in this regard, and consequently summary judgment which would preclude any evidence of this exception would be improper. Consequently, defendant’s motion to dismiss the sixth, seventh and eighth causes of action on the basis of the Statute of Limitations is denied; however, that defense is preserved
Finally, defendant Bison seeks to dismiss plaintiffs’ fifth cause of action, based on strict liability, on the grounds that as a retailer it cannot be held strictly liable for defects in the product itself. This assertion, however, is contrary to the case law with regard to strict liability, and contrary to section 402 A of the Restatement of Torts, Second, upon which the cause of action in strict liability is based. (Mead v Warner Pruyn Div., Finch Pruyn Sales, 57 AD2d 340.) If it is Bison’s assertion that Alumo is solely responsible for the defect, if any, its remedy is a claim over against Alumo, or apportionment. Consequently, defendant Bison’s motion for summary judgment dismissing plaintiffs’ fifth cause of action is denied.
For the foregoing reasons, defendant’s motions are hereby denied.