Milau Associates, Inc. v. North Ave. Development Corp.
| Decision Date | 15 February 1977 |
| Docket Number | 2,Nos. 1,s. 1 |
| Citation | 56 A.D.2d 587,391 N.Y.S.2d 628 |
| Parties | , 20 UCC Rep.Serv. 1155 MILAU ASSOCIATES, INC., Plaintiff, v. NORTH AVENUE DEVELOPMENT CORP., Defendant. BAUM TEXTILE MILL CO., INC., et al., Appellants, v. MILAU ASSOCIATES, INCORPORATED, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Gwertzman, Nagelberg & Pfeffer, New York City (Milton B. Pfeffer and Margaret A. Goederer, of counsel), for appellants.
Hurley, Fox & Selig, Stony Point (Ralph S. Joseph, New York City, of counsel), for respondent Milau Associates, Inc.
Barry, McTiernan & Moore, New York City (Roger P. McTiernan, New York City of counsel), for respondent Higgins Fire Protection, Inc.
Before MARTUSCELLO, Acting P.J., and LATHAM, MARGETT, DAMIANI and TITONE, JJ.
MEMORANDUM BY THE COURT.
In an action to recover for damages to property predicated upon negligence and breach of warranty, plaintiffs in Action No. 2 appeal from a judgment of the Supreme Court, Rockland County, dated September 4, 1975, which, after a jury trial, is in favor of defendants in Action No. 2 and against them.
Judgment affirmed, with one bill of costs jointly to respondents.
Appellants are occupants of an office and industrial building in Orangeburg, New York. Defendant Milau Associates, Inc. is a general contractor; it undertook construction of the said building in 1969 and agreed to provide and install a sprinkler system. Defendant Higgins Fire Protection, Inc. entered into a subcontract with Milau Associates, whereby it agreed to provide and install the said sprinkler system.
The plans and specifications for the installation of the sprinkler system were prepared by Higgins Fire Protection. As part of the sprinkler system, Higgins installed an eight-inch pipe which connected the meter pit in the street to the sprinkler system in the building. Installation of the entire system was completed in December, 1969 and parts of the building were occupied the same month.
Five months later, in May, 1970, the eight-inch pipe from the meter pit to the building burst, causing large amounts of water to enter the building. Blots of textiles, stored within the building by appellants, were allegedly damaged.
At the trial, evidence was adduced that Higgins had utilized 20-foot sections of pipe in connecting the meter pit to the sprinkler system; some of the sections were cut into smaller lengths by Higgins before being installed. Appellants' expert, an architect and engineer, testified that he examined the section of pipe which had burst and that the cause of the break was a V-shaped notch at the end of the pipe, at the root of which a crack had started. It was the expert's opinion that the notch was caused by a dull tooth on a hydraulic squeeze cutter which had been used to cut the pipe; such a notch would affect the integrity of the pipe.
The question of negligent installation of the pipe was submitted to the jury. Thial Term refused a request by appellants to charge that the respondents 'impliedly warranted that the pipe in question was fit for the purposes for which it was intended.' The jury returned a verdict in favor of respondents.
On this appeal appellants claim that Trial Term's refusal to charge as to implied warranty was error and that Trial Term should have charged that there was an implied warranty of fitness for a particular purpose (see Uniform Commercial Code, § 2--315). In the alternative, they argue that even if the warranty provisions of article 2 of the Code are inapplicable, there was an implied warranty at common law 'that the sprinkler system as installed would be fit for its intended purpose.' Both contentions must be rejected.
Although, in a proper case, the implied warranty provisions of the Uniform Commercial Code might apply to the 'sale of goods' aspect of a hybrid sales services contract (see Schenectady Steel Co. v. Trimpoli Gen. Constr. Co., 43 A.D.2d 234, 350 N.Y.S.2d 920 (concurring opn. by Greenblott, J.), affd. 34 N.Y.2d 939, 359 N.Y.S.2d 560, 316 N.E.2d 875; Newmark v. Gimbel's Inc., 54 N.J. 585, 258 A.2d 697), the record is devoid of any evidence that the pipe installed by Higgins was unfit for its intended purpose. The entire thrust of appellants' proof was that the pipe was Installed in a negligent manner. That being the case, Trial Term properly refused to charge that there was an implied warranty that the pipe--i.e., the 'goods'--was fit for any particular purpose.
Nor is any warranty with respect to services implied by...
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