Copeland v. Weyerhaeuser Co.

Appellate Division of the Supreme Court of New York

Copeland v. Weyerhaeuser Co.

124 A.D.2d 998, 509 N.Y.S.2d 227, 1986 N.Y. App. Div. LEXIS 62324

Appellate Division of the Supreme Court of the State of New York·Decided November 10, 1986·Published·Cited by 7 cases

Opinion

Memorandum: Special Term properly denied plaintiffs’ motions for permission to amend their complaints to assert causes of action for breach of implied warranty, breach of express warranty, and deceptive business practices. Because plaintiffs, in their proposed complaint, have not alleged that they were in privity with defendants, they may not recover on a claim of breach of implied warranty (see, Jaffee Assoc. v Bilsco Auto. Serv., 89 AD2d 785, affd 58 NY2d 993; see also, Miller v General Motors Corp., 99 AD2d 454, affd 64 NY2d 1081).

The proposed cause of action for breach of express warranty is insufficient because of failure to set forth the terms of the warranty upon which plaintiffs rely. A complaint for breach of contract must allege the provisions of the contract upon which the claim is based (Bomser v Moyle, 89 AD2d 202; Shields v School of Law, 77 AD2d 867; Lupinski v Village of Ilion, 59 AD2d 1050).

Finally, the proposed cause of action for deceptive business [999]*999practices is defective for failure to allege any acts of plaintiffs after June 19, 1980 (the effective date of the deceptive business practice provision of the General Business Law) in reliance upon the alleged deceptive representation (see, Hemming v Certainteed Corp., 97 AD2d 976, appeal dismissed 61 NY2d 758). (Appeal from order of Supreme Court, Monroe County, Rosenbloom, J. — amend complaint.) Present — Dillon, P. J., Callahan, Boomer, Balio and Lawton, JJ.

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Memorandum: Special Term properly denied plaintiffs’ motions for permission to amend their complaints to assert causes of action for breach of implied warranty, breach of express warranty, and deceptive business practices. Because plaintiffs, in their proposed complaint, have not alleged that they were in privity with defendants, they may not recover on a claim of breach of implied warranty (see, Jaffee Assoc. v Bilsco Auto. Serv., 89 AD2d 785, affd 58 NY2d 993; see also, Miller v General Motors Corp., 99 AD2d 454, affd 64 NY2d 1081).

The proposed cause of action for breach of express warranty is insufficient because of failure to set forth the terms of the warranty upon which plaintiffs rely. A complaint for breach of contract must allege the provisions of the contract upon which the claim is based (Bomser v Moyle, 89 AD2d 202; Shields v School of Law, 77 AD2d 867; Lupinski v Village of Ilion, 59 AD2d 1050).

Finally, the proposed cause of action for deceptive business [999]*999practices is defective for failure to allege any acts of plaintiffs after June 19, 1980 (the effective date of the deceptive business practice provision of the General Business Law) in reliance upon the alleged deceptive representation (see, Hemming v Certainteed Corp., 97 AD2d 976, appeal dismissed 61 NY2d 758). (Appeal from order of Supreme Court, Monroe County, Rosenbloom, J. — amend complaint.) Present — Dillon, P. J., Callahan, Boomer, Balio and Lawton, JJ.

Copeland v. Weyerhaeuser Co., 124 A.D.2d 998, 509 N.Y.S.2d 227, 1986 N.Y. App. Div. LEXIS 62324 (N.Y. Ct. App. 1986).

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124 A.D.2d 998 (Copeland v. Weyerhaeuser Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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