Queensbury Union Free School District v. Jim Walter Corp.

94 A.D.2d 834, 463 N.Y.S.2d 114, 1983 N.Y. App. Div. LEXIS 18307

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 1983
• Status: Published

Opinion

— Appeal from an order of the Supreme Court at Special Term (Crangle, J.), entered March 19, 1982 in Warren County, which granted a motion by defendants Jim Walter Corporation and Celotex Corporation to dismiss plaintiff’s fourth cause of action, sounding in negligence. Plaintiff seeks to recover the cost of repairing or replacing an allegedly defective roof installed in the late 1960’s on one of its school buildings. The facts of this case are recited in our earlier decision (82 AD2d 204). As a result of that decision, plaintiff's claim in strict tort liability was dismissed for failure to state a cause of action. In addition, a claim for breach of implied warranty was held to be time barred while the negligence cause of action which is presently at issue was found timely. Defendants Jim Walter Corporation and Celotex Corporation now move to dismiss the negligence claim for failure to state a cause of action.- Special Term granted the motion and we affirm. The only damages contemplated by the complaint, whether they be compensatory or punitive, relate to the “repair or replacement of said roof”. Because this damage involved only economic loss, recovery in tort is unavailable (Hole v General Motors Corp., 83 AD2d 715, 717; Schiavone Constr. Co. v Elgood Mayo Corp., 81 AD2d 221, 227-234 [Silverman, J., dissenting], revd on dissenting opn below 56 NY2d 667). Those, like plaintiff, who seek only the benefit of their bargain, are limited to pursuing contractual remedies. Order affirmed, without costs. Main, J. P., Casey, Mikoll, Yesawich, Jr., and Weiss, JJ., concur.