Nasca v. Jon-Lar Homes, Inc.

238 A.D.2d 930, 661 N.Y.S.2d 156, 1997 N.Y. App. Div. LEXIS 4746

Opinion

—Order unanimously reversed on the law without costs and judgment reinstated. Memorandum: Town Court of the Town of Ogden dismissed plaintiffs? action as time-barred and, upon plaintiffs’ appeal, County Court reversed the judgment, reinstated the action and remitted the matter to Town Court for further proceedings. We reverse. Plaintiffs seek damages for water exposure to wooden beams in their home resulting from the faulty installation of a sliding glass door at the time the home was constructed. Because plaintiffs failed to commence this action within six years of taking title to the property, the action is time-barred and was properly dismissed by Town Court (see, CPLR 213; Calamel v Ridge View Realty Corp., 115 AD2d 279, appeal dismissed 67 NY2d 799). Plaintiffs’ reliance on Sommer v Federal Signal Corp. (79 NY2d 540) is misplaced; plaintiffs have not alleged the breach of a legal duty independent of the contract. In light of our determination, we do not address the issue whether water is a substance within the meaning of CPLR 214-c. (Appeal from Order of Monroe County Court, Marks, J.—Dismiss Action.) Present—Green, J. P., Lawton, Do-err, Balio and Fallon, JJ.