St. Mary's Protectress Ukrainian Autocephalous Orthodox Church v. Challenger Electrical Equipment Corp.

175 A.D.2d 589, 572 N.Y.S.2d 252, 1991 N.Y. App. Div. LEXIS 10098

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1991
• Status: Published

Opinion

— Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied defendant’s motion to dismiss plaintiff’s fourth and eighth causes of action. In its complaint alleging strict products liability, plaintiff alleges that a defective electrical baseboard heater manufactured by defendant caused a fire which resulted in extensive structural damage to plaintiff’s recreation hall. Contrary to defendant’s contention, plaintiff does not seek to recover economic loss only (see, Schiavone Constr. Co. v Mayo Corp., 56 NY2d 667, revg on dissenting opn 81 AD2d 221, 228). The cases upon which defendant relies cover a different situation entirely — the situation where a product fails to perform adequately, resulting in economic loss only. In those cases, courts have limited plaintiff to available contract remedies (see, Ralston Purina Co. v McKee & Co., 158 AD2d 969; Richman v Albert, 127 AD2d 992, lv denied 70 NY2d 745; Butler v Caldwell & Cook, 122 AD2d 559; County of Chenango Indus. Dev. Agency v Lockwood Greene Engrs., 114 AD2d 728, appeal dismissed 67 NY2d 757). Such is not the case here.

Supreme Court also properly denied defendant’s motion to dismiss plaintiff’s breach of warranty claim as time-barred. Plaintiff’s claim, which sounds in tort, arose on the date of the injury (see, Victorson v Bock Laundry Mach. Co., 37 NY2d 395, 402-404). Plaintiff’s action, commenced within three years of the date of the injury, was timely (see, Heller v U.S. Suzuki Motor Corp., 64 NY2d 407, 412). (Appeal from Order of Supreme Court, Monroe County, Curran, J. — Dismiss Causes of Action.) Present — Doerr, J. P., Green, Pine, Lawton and Davis, JJ.