State University Construction Fund v. Kipphut & Neuman Co.

Appellate Division of the Supreme Court of New York

State University Construction Fund v. Kipphut & Neuman Co.

91 A.D.2d 1167, 459 N.Y.S.2d 134, 1983 N.Y. App. Div. LEXIS 16506

Appellate Division of the Supreme Court of the State of New York·Decided January 21, 1983·Published

Opinion

— Order affirmed, without costs. All concur, Simons, J., not participating. Memorandum: Although Kewaunee Scientific Corporation is a contractor bound by, and entitled to, the benefit of the subrogation waiver clause, it is also a manufacturer and, under the exclusionary clause, it is subject to suit for damage caused by alleged defects in the materials it furnished under its contract. The only claimed basis for recovery against the defendant Kipphut and Neuman was because of its defective workmanship in providing and installing the wrong size nipple, not because of any defect in materials supplied under its contract. Thus, it did not fall within the exclusionary clause. The motion of Gardner Construction Company was properly denied since it presented insufficient evidence of its status as a party entitled to the benefit of the subrogation waiver clause. (Appeals from order of Supreme Court, Erie County, Stiller, J. — summary judgment.) Present — Dillon, P. J., Simons, Doerr, Boomer and Moule, JJ.

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— Order affirmed, without costs. All concur, Simons, J., not participating. Memorandum: Although Kewaunee Scientific Corporation is a contractor bound by, and entitled to, the benefit of the subrogation waiver clause, it is also a manufacturer and, under the exclusionary clause, it is subject to suit for damage caused by alleged defects in the materials it furnished under its contract. The only claimed basis for recovery against the defendant Kipphut and Neuman was because of its defective workmanship in providing and installing the wrong size nipple, not because of any defect in materials supplied under its contract. Thus, it did not fall within the exclusionary clause. The motion of Gardner Construction Company was properly denied since it presented insufficient evidence of its status as a party entitled to the benefit of the subrogation waiver clause. (Appeals from order of Supreme Court, Erie County, Stiller, J. — summary judgment.) Present — Dillon, P. J., Simons, Doerr, Boomer and Moule, JJ.

State University Construction Fund v. Kipphut & Neuman Co., 91 A.D.2d 1167, 459 N.Y.S.2d 134, 1983 N.Y. App. Div. LEXIS 16506 (N.Y. Ct. App. 1983).

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91 A.D.2d 1167 (State University Construction Fund v. Kipphut & Neuman Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.