Board of Mgrs. of the A Bldg. Condominium v. 13th & 14th St. Realty, LLC

Appellate Division of the Supreme Court of New York

Board of Mgrs. of the A Bldg. Condominium v. 13th & 14th St. Realty, LLC

126 A.D.3d 634, 6 N.Y.S.3d 249

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 31, 2015

Docket100061/11 14612A 590536/12 14612

StatusPublished

This text of 126 A.D.3d 634 (Board of Mgrs. of the A Bldg. Condominium v. 13th & 14th St. Realty, LLC) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Board of Mgrs. of the A Bldg. Condominium v. 13th & 14th St. Realty, LLC, 126 A.D.3d 634, 6 N.Y.S.3d 249 (N.Y. Ct. App. 2015).

Pincite

Opinion

Orders, Supreme Court, New York County (Barbara Jaffe, J.), entered September 3, 2013 and October 25, 2013, which to the extent appealed from, granted summary judgment to defendant American Hydrotech dismissing the complaint against it, unanimously affirmed, without costs.

Even if Hydrotech’s motion to dismiss should not have been converted to a motion for summary judgment, dismissal of the complaint was warranted pursuant to CPLR 3211 (a) (1), based on Hydrotech’s unambiguous Watertightness Warranty (see Four Seasons Hotels v Vinnik, 127 AD2d 310, 318 [1st Dept 1987]; see also 401 W. 14th St. Fee LLC v Mer Du Nord Noordzee, LLC, 34 AD3d 294, 295 [1st Dept 2006]). The warranty expressly pertains solely to the watertightness of Hydrotech’s product, which it sold to third-party defendant Bay Restoration for installation on the roof of plaintiffs’ condominium, and did not pertain to any damage to the base over which the product was installed, the building structure, or any improper installation (see UCC 2-316 [1]; see also West 63 Empire Assoc., LLC v Walker & Zanger, Inc., 107 AD3d 586, 586 [1st Dept 2013]). Further, the warranty expressly limits the building owner’s remedies to the repair of the product or the repayment of the original cost of the product, the latter of which Hydrotech chose to do (see UCC 2-316 [4]). Accordingly, under the express terms of the warranty, Hydrotech’s liability to plaintiffs thereunder immediately ceased upon repayment.

The limitation of remedies does not fail in its essential purpose (see UCC 2-719 [2]), as plaintiffs received the benefit of their bargain (see Cayuga Harvester v Allis-Chalmers Corp., 95 AD2d 5, 11 [4th Dept 1983]). *

Concur — Tom, J.P., Renwick, DeGrasse, Manzanet-Daniels and Clark, JJ.

*

We note that American Hydrotech’s motion called for a dismissal of the complaint only. Accordingly, the orders appealed from made no disposition of any cross claims. We therefore do not address such cross claims on this appeal.

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Orders, Supreme Court, New York County (Barbara Jaffe, J.), entered September 3, 2013 and October 25, 2013, which to the extent appealed from, granted summary judgment to defendant American Hydrotech dismissing the complaint against it, unanimously affirmed, without costs.

Even if Hydrotech’s motion to dismiss should not have been converted to a motion for summary judgment, dismissal of the complaint was warranted pursuant to CPLR 3211 (a) (1), based on Hydrotech’s unambiguous Watertightness Warranty (see Four Seasons Hotels v Vinnik, 127 AD2d 310, 318 [1st Dept 1987]; see also 401 W. 14th St. Fee LLC v Mer Du Nord Noordzee, LLC, 34 AD3d 294, 295 [1st Dept 2006]). The warranty expressly pertains solely to the watertightness of Hydrotech’s product, which it sold to third-party defendant Bay Restoration for installation on the roof of plaintiffs’ condominium, and did not pertain to any damage to the base over which the product was installed, the building structure, or any improper installation (see UCC 2-316 [1]; see also West 63 Empire Assoc., LLC v Walker & Zanger, Inc., 107 AD3d 586, 586 [1st Dept 2013]). Further, the warranty expressly limits the building owner’s remedies to the repair of the product or the repayment of the original cost of the product, the latter of which Hydrotech chose to do (see UCC 2-316 [4]). Accordingly, under the express terms of the warranty, Hydrotech’s liability to plaintiffs thereunder immediately ceased upon repayment.

The limitation of remedies does not fail in its essential purpose (see UCC 2-719 [2]), as plaintiffs received the benefit of their bargain (see Cayuga Harvester v Allis-Chalmers Corp., 95 AD2d 5, 11 [4th Dept 1983]). *

Concur — Tom, J.P., Renwick, DeGrasse, Manzanet-Daniels and Clark, JJ.

*

We note that American Hydrotech’s motion called for a dismissal of the complaint only. Accordingly, the orders appealed from made no disposition of any cross claims. We therefore do not address such cross claims on this appeal.

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126 A.D.3d 634, 6 N.Y.S.3d 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-mgrs-of-the-a-bldg-condominium-v-13th-14th-st-realty-llc-nyappdiv-2015.

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