Fazio v. Ford Motor Corp.

69 A.D.2d 896, 415 N.Y.S.2d 889, 1979 N.Y. App. Div. LEXIS 11639

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 1979
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of warranty, defendant appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Kings County, dated March 8, 1978, as granted plaintiffs’ motion to strike and dismiss the defense of the bar of the Statute of Limitations (pars 17, 28, 33 of the answer) and denied its cross motion for summary judgment as to the breach of warranty cause of action. Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, the plaintiffs’ motion to strike paragraphs 17, 28 and 33 of the defendant’s answer is denied and the defendant’s cross motion for summary judgment is granted as to the breach of warranty cause of action, and any derivative cause of action predicated thereon. The Statute of Limitations for the cause of action for breach of warranty accrued at the time of the original sale of the Ford automobile in 1964, regardless of when the injury was sustained (see Rivera v Berkeley Super Wash, 44 AD2d 316, affd 37 NY2d 395). If the sale occurred prior to September 27, 1964—the effective date of the Uniform Commercial Code—then the six-year period of limitations applies (see CPLR 213, subd 2). If the sale occurred after September 27, 1964, the four-year period of limitations applies (see Uniform Commercial Code, § 2-725). In either event, however, the period of limitations expired long before the instant action was commenced on February 2, 1977. Therefore, summary judgment is granted to the defendant on this cause of action. Titone, J. P., Shapiro, Martuscello and Mangano, JJ., concur.