WILLIAM GALLUP AND ANN GALLUP INDIVIDUALLY AND AS PARENTS AND NATURAL GUARDIANS OF ANDREW GALLUP AND BENJAMIN GALLUP MINORS UNDER 18 YEARS OF AGE PLAINTIFFS RESPONDENTS APPELLANTS v. SUMMERSET HOMES LLC DEFENDANT APPELLANT RESPONDENT ET AL DEFENDANT

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

WILLIAM GALLUP AND ANN GALLUP, INDIVIDUALLY AND AS PARENTS AND NATURAL GUARDIANS OF ANDREW GALLUP AND BENJAMIN GALLUP, MINORS UNDER 18 YEARS OF AGE, PLAINTIFFS-RESPONDENTS -APPELLANTS, v. SUMMERSET HOMES, LLC, DEFENDANT-APPELLANT -RESPONDENT, ET AL., DEFENDANT.

CA 10-02242

Decided: March 25, 2011

PRESENT:  CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ. RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, ROCHESTER (MATTHEW A. LENHARD OF COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT. DUCHARME, HARP & CLARK, LLP, CLIFTON PARK (CHERYL L. SOVERN OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS-APPELLANTS.

MEMORANDUM AND ORDER

Appeal and cross appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), entered May 10, 2010 in a breach of contract action.   The order granted in part and denied in part the motion of defendant Summerset Homes, LLC for summary judgment.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting those parts of the motion of defendant Summerset Homes, LLC seeking summary judgment dismissing the third, sixth, and seventh causes of action and as modified the order is affirmed without costs.

We reject plaintiffs' contention that the court erred in granting the motion with respect to the negligence and strict products liability causes of action.   This is yet another example of a case in which causes of action for contract and tort appear to overlap, i.e., “where the parties' relationship initially is formed by contract, but there is a claim that the contract was performed negligently” (Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 551).  “It is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated ․ This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract” (Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 389).  “[M]erely alleging that the breach of a contract duty arose from a lack of due care will not transform a simple breach of contract into a tort” (Sommer, 79 N.Y.2d at 551).   In considering whether plaintiffs have viable tort causes of action, we must also consider “the nature of the injury, the manner in which the injury occurred and the resulting harm” (id. at 552).

We agree with defendant, however, that the court erred in denying those parts of its motion seeking summary judgment dismissing the third, sixth, and seventh causes of action, for breach of warranty.   We therefore modify the order accordingly.   As noted above, the contract contained a limited warranty, and the sixth cause of action alleges a breach of the housing merchant implied warranty set forth in General Business Law § 777-a.   Contrary to plaintiffs' contention, that limited warranty complied with the requirements set forth in General Business Law § 777-b, which provides that the housing merchant implied warranty in section 777-a may be excluded where, as here, the buyer is offered a limited warranty under section 777-b.   Thus, the court erred in denying defendant's motion with respect to the sixth cause of action (cf.   Latiuk v. Faber Constr.   Co., 269 A.D.2d 820).   In addition, the court erred in denying the motion with respect to the third cause of action, for breach of common-law express and implied warranties, because it is precluded by the limited warranty (see Fumarelli v. Marsam Dev., 92 N.Y.2d 298, 305;  Bedrosian v. Guzy, 32 AD3d 1194, 1195-1196).   We further conclude that the court erred in denying the motion with respect to the seventh cause of action, for breach of the limited warranty offered to plaintiffs pursuant to General Business Law § 777-b.   Plaintiffs did not comply with the written notice of claim requirement for the one-year and two-year limited warranty provisions, and thus they are entitled to recover, if at all, only under the six-year warranty provision (see Lantzy, 60 AD3d at 1255;  Rothstein, 299 A.D.2d at 474-475).   The six-year warranty covered only major structural defects, which are defined as defects resulting in actual physical damage to a load-bearing portion of the home affecting its load-bearing functions to the extent the home becomes “unsafe, unsanitary, or otherwise unlivable.”   While the mold infestation in plaintiffs' home certainly rendered it “unsafe, unsanitary, [and] otherwise unlivable,” it did not affect the load-bearing functions of the home.   Plaintiffs therefore do not have a viable cause of action for breach of the six-year warranty (see generally Finnegan v. Brooke Hill, LLC, 38 AD3d 491, 492).

Patricia L. Morgan

Clerk of the Court