Repecki v. Parex Inc.

Appellate Division of the Supreme Court of New York

Repecki v. Parex Inc.

300 A.D.2d 292, 751 N.Y.S.2d 849, 2002 N.Y. App. Div. LEXIS 11622

Appellate Division of the Supreme Court of the State of New York·Decided December 2, 2002·Published·Cited by 2 cases

Opinion

—In an action, inter alia, to recover damages for breach of contract and breach of warranty, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Barone, J.), entered October 10, 2001, which denied their motion to discontinue their causes of action alleging breach of warranty and granted the cross motion of the defendant Horton Building Corp. pursuant to CPLR 3211 (a) (7) to dismiss the seventh, eighth, ninth, and twelfth causes of action.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted those branches of the cross motion of the defendant Horton Building Corp. which were to dismiss the causes of action sounding in breach of express and implied warranties, since the plaintiffs failed to timely file a notice of warranty claim pursuant to the limited warranty between them and Horton Building Corp. Further, since the limited warranty excluded any common-law implied warranty, that branch of the cross motion which was to dismiss the seventh cause of action sounding in common-law breach of contract was also properly granted (see Hirshorn v Little Lake Estates, 251 AD2d 377, 378; Fumarelli v Marsam Dev., 238 AD2d 470, affd 92 NY2d 298).

The plaintiffs’ remaining contentions are without merit. Altman, J.P., S. Miller, Luciano and Rivera, JJ., concur.

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—In an action, inter alia, to recover damages for breach of contract and breach of warranty, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Barone, J.), entered October 10, 2001, which denied their motion to discontinue their causes of action alleging breach of warranty and granted the cross motion of the defendant Horton Building Corp. pursuant to CPLR 3211 (a) (7) to dismiss the seventh, eighth, ninth, and twelfth causes of action.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted those branches of the cross motion of the defendant Horton Building Corp. which were to dismiss the causes of action sounding in breach of express and implied warranties, since the plaintiffs failed to timely file a notice of warranty claim pursuant to the limited warranty between them and Horton Building Corp. Further, since the limited warranty excluded any common-law implied warranty, that branch of the cross motion which was to dismiss the seventh cause of action sounding in common-law breach of contract was also properly granted (see Hirshorn v Little Lake Estates, 251 AD2d 377, 378; Fumarelli v Marsam Dev., 238 AD2d 470, affd 92 NY2d 298).

The plaintiffs’ remaining contentions are without merit. Altman, J.P., S. Miller, Luciano and Rivera, JJ., concur.

Repecki v. Parex Inc., 300 A.D.2d 292, 751 N.Y.S.2d 849, 2002 N.Y. App. Div. LEXIS 11622 (N.Y. Ct. App. 2002).

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Opinion

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