In an action, inter alia, to recover damages for breach of express warranty and fraudulent concealment, the plaintiffs ap
Ordered that the appeal from so much of the order as denied, as unnecessary, the plaintiffs’ cross motion for leave to amend their complaint is dismissed, as the plaintiffs are 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 which denied, as unnecessary, their cross motion for leave to amend the complaint, the appeal is dismissed. Since the Supreme Court determined that the plaintiffs could amend their complaint a second time as of right, and since the Supreme Court considered the plaintiffs’ proposed second amended complaint in deciding the defendants’ motion to dismiss, 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 for leave 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 they purchased a house in New Suffolk which allegedly had been constructed in 1997. At the time of construction, the original owners allegedly purchased windows and doors that were manufactured, distributed, and retailed by the defendants. In 2009, approximately seven years after the plaintiffs purchased the house from the original owners, the windows and doors allegedly began exhibiting visible signs of peeling, rot, and decay. In August 2010, the plaintiffs commenced this action, inter alia, to recover damages for breach of express warranty and fraudulent concealment. The Supreme Court, among other things, granted those branches of the defendants’ motion which were pursuant to CPLR 3211 (a) (5) to dismiss the cause of action to recover damages for breach of express warranty and pursuant to CPLR 3211 (a) (7) to dismiss the cause of action to recover damages for fraudulent concealment.
A cause of action alleging breach of warranty is governed by a
Here, the subject warranty did not guarantee that the windows and doors would be free from defects for any specified period of time. Instead, it guaranteed that if any defect in manufacturing, materials or workmanship occurred within 10 years, then the product would be repaired or replaced, or the purchase price refunded. As such, the Supreme Court properly determined that the warranty did not extend to future performance (see Gianakakos v Commodore Home Sys., 285 AD2d 907 [2001]; Hull v Moore’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. of N.Y., 218 AD2d 515 [1995]; Mittasch v Seal Lock Burial Vault, 42 AD2d 573 [1973]), and that the plaintiffs’ causes of action alleging breach of express warranty accrued in 1997, when the windows and doors were allegedly delivered (see UCC 2-725). Since the action was commenced in August 2010, more than four years after the accrual date for breach of warranty actions, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (5) to dismiss the plaintiffs’ cause of action to recover damages for breach of express warranty.
Furthermore, the Supreme Court properly granted that
