NASCA v. JON LAR HOMES INC

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Supreme Court, Appellate Division, Fourth Department, New York.

Barry and Martha NASCA, Respondents, v. JON-LAR HOMES, INC., Appellant.

Decided: April 25, 1997

Before GREEN, J.P., and LAWTON, DOERR, BALIO and FALLON, JJ. Woods, Oviatt, Gilman by Bernadette Weaver-Catalana, Rochester, for Appellant. Daniel J. Doyle by Timothy Donaher, Rochester, for Respondent.

Town Court of the Town of Ogden dismissed plaintiffs' action as time-barred and, upon plaintiffs' appeal, County Court reversed the judgment, reinstated the action and remitted the matter to Town Court for further proceedings.   We reverse.   Plaintiffs seek damages for water exposure to wooden beams in their home resulting from the faulty installation of a sliding glass door at the time the home was constructed.   Because plaintiffs failed to commence this action within six years of taking title to the property, the action is time-barred and was properly dismissed by Town Court (see, CPLR 213;  Calamel v. Ridge View Realty Corp., 115 A.D.2d 279, 496 N.Y.S.2d 154, appeal dismissed 67 N.Y.2d 799, 501 N.Y.S.2d 324, 492 N.E.2d 397).  Plaintiffs' reliance on Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 583 N.Y.S.2d 957, 593 N.E.2d 1365 is misplaced;  plaintiffs have not alleged the breach of a legal duty independent of the contract.   In light of our determination, we do not address the issue whether water is a substance within the meaning of CPLR 214-c.

Order unanimously reversed on the law without costs and judgment reinstated.

MEMORANDUM: