Queensbury Union Free School District v. Jim Walter Corp.

101 A.D.2d 992, 477 N.Y.S.2d 475, 1984 N.Y. App. Div. LEXIS 18708

Opinions

Appeal from an order of the Supreme Court at Special Term (Ford, J.), entered October 27,1983 in Warren County, which denied defendants’ motion for summary judgment and granted plaintiff’s motion to amend its complaint. 11 The facts underlying this action have been set forth previously (82 AD2d 204, app dsmd 55 NY2d 745). At that time, plaintiff’s causes of action for implied warranty and strict products liability against certain defendants were dismissed

Footnotes

•

* but the negligence cause of action remained viable as not time barred (id.). Subsequently, we affirmed Special Term’s dismissal of this negligence claim for failure to state a cause of action (94 AD2d 834). Since that time, plaintiff has moved by order to show cause to file a second amended complaint reflecting these dismissals and the settlement of various claims against other defendants. This second amended complaint would also change the caption preceding certain allegations from “the plaintiff SHOULD BE AWARDED EXEMPLARY AND PUNITIVE DAMAGES AGAINST THE DEFENDANTS CELOTEX AND JIM WALTER CORPORATION” to “AS AND FOR A THIRD, separate and distinct cause of action”, although none of the allegations following the caption would be changed. This amendment would make clear that plaintiff is alleging a separate cause of action in fraud, such fraud not being barred by the Statute of Limitations, although “fraud” is not stated anywhere in the allegations. Defendants resisted this amendment on the ground that the fraud allegations were merely incidental to the warranty, negligence and strict products liability allegations and could not stand alone. Defendants also moved for summary judgment against themselves' in the amount of $794.73, the amount remaining on the repair bond issued to plaintiff by defendant Aetna Casualty & Surety Company, which named defendant Celotex Corporation as principal. Special Term granted plaintiff’s motion to amend its complaint and denied defendants’ motion for summary judgment without prejudice. This appeal by defendants followed. H Although amendments to pleadings should be “freely” granted (CPLR 3025, subd [b]) within the broad discretion of the lower court (see, e.g., Murray v City of New York, 43 NY2d 400, 404-405), such amendments should not be granted when the allegations contained therein are clearly without merit (see, e.g., Maxwell v State Farm Mut. Auto. Ins. Co., 92 AD2d 1049, 1050). We have previously characterized the nature of plaintiff’s action as contractual (94 AD2d 834, supra) and changing the caption preceding the allegations in question does not change our perception of the essence of plaintiff’s complaint. The allegations of fraud relate to claimed misrepresentations made by defendants about the suitability of the two-ply roof and are similar to those made in New York Seven-Up Bottling Co. v Dow Chem. Co. (96 AD2d 1051, 1052, affd 61 NY2d 828), wherein the court dismissed the allegations of fraud because they were incidental to the strict products liability cause of action, which was dismissed as time barred. Likewise, plaintiff cannot rely on allegations of fraud which are incidental to a complaint which is contractual in nature to invoke a longer Statute of Limitations and thereby keep its lawsuit viable (see, also, Quinn v Hoover & Strong, 96 AD2d 1145,1146; but cf. Angie v Johns Manville Corp., 94 AD2d 939, 940). There being no merit to the allegations which plaintiff, by its amendment, now seeks to denominate as a separate and distinct cause of action sounding in fraud, no purpose would be served by granting such an amendment and it was an abuse of discretion for Special Term to grant this proposed amendment, f We further conclude that Special Term erred in not granting summary judgment against defendants for the amount remaining on the repair bond. The bond guaranteed that for 20 years defendant Celotex would repair any leaks caused by ordinary wear and tear by the elements. Defendants’ uncontroverted evidence demonstrates that this bond was written at least to the standard in the industry. Furthermore, the bond, as merely an agreement to repair, is not an express warranty of the future performance of the roof (see Shapiro v Long Is. Light. Co., 71 AD2d 671). Moreover, the bond was not an exclusive remedy and did not limit in any way plaintiff’s remedies under the Uniform Commercial Code, which have been held barred by the Statute of Limitations. Consequently, the bond cannot be deemed unreasonable or unconscionable, plaintiff cannot rely on the bond as a 20-year express warranty of performance, and plaintiff cannot invoke subdivision (2) of section 2-719 of the Uniform Commercial Code as providing additional remedies. Inasmuch as defendants admit liability under the bond, Special Term should have granted summary judgment to plaintiff for the amount remaining on the bond. This disposition renders it unnecessary to consider the propriety of plaintiff’s remaining proposed amendments. H Order reversed, on the law, without costs, defendants’ motion granted, and summary judgment awarded to plaintiff for the amount remaining on the repair bond and amended complaint in all other respects dismissed. Kane, J. P., Main, Yesawich, Jr., and Harvey, JJ., concur.

The implied warranty cause of action was held barred by the Statute of Limitations and the strict products liability claim was dismissed for failure to state a cause of action.