H. Sand & Co., Inc. v. Airtemp Corp.
| Decision Date | 30 May 1990 |
| Docket Number | No. 83 Civ. 5722 (IBC).,83 Civ. 5722 (IBC). |
| Citation | 738 F. Supp. 760 |
| Parties | H. SAND & CO., INC., Plaintiff, v. AIRTEMP CORPORATION, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Berman, Paley, Goldstein & Berman, New York City (Stuart J. Moskovitz, of counsel), for plaintiff.
Weisman, Celler, Spett & Modlin, New York City (John B. Sherman, of counsel), for defendant.
Defendant Airtemp Corporation ("Airtemp") moves for summary judgment pursuant to Fed.R.Civ.P. 56(b) dismissing the amended complaint of plaintiff H. Sand & Co. Inc. (Sand) on the grounds that: (a) plaintiff Sand did not initiate litigation until more than four years after tender of delivery of the goods and thus, under New York Uniform Commercial Code (U.C.C.) § 2-725 this action is time-barred; (b) Sand expressly assented to Airtemp's warranty terms in writing which expired long before Sand made any claim for service thereunder; or (c) since Sand's and Airtemp's terms and conditions of sale are conflicting regarding the sale of the goods, under U.C.C. § 2-207, neither parties' terms apply; instead, the implied warranties of U.C.C. §§ 2-314 and 2-315 are imposed by operation of law. Defendant also contends that even if Sand's warranty is applicable, it had expired by the time plaintiff requested service from Airtemp because service was requested more than "one year from acceptance by owner" (the terms contained within Sand's purchase order).
Plaintiff opposes defendant's motion for summary judgment and moves for partial summary judgment pursuant to Fed.R. Civ.P. 56(a), maintaining that plaintiff's terms and conditions of sale, which contain its warranty, are the only terms and conditions which have been exchanged between the parties in this sale, and "no applicable limitation of liability exists which would restrict recovery to the terms of defendant's alleged `standard warranty'." (Plaintiff's Notice of Motion, filed August 24, 1988). Alternatively, even if there are conflicting terms and conditions of sale between the parties and a "battle of the forms" situation exists, the limitations imposed by defendant's warranty would not apply.
As part of a series of major improvements to its facilities in the metropolitan area, the Port Authority of New York and New Jersey ("Port Authority") undertook the renovation of its main Bus Terminal located at 8th Avenue and 40th Street in Manhattan, New York. Carlin Atlas was retained by Port Authority as the general contractor for the renovation project and in turn hired plaintiff Sand, a heating, ventilation and air conditioning subcontractor.
On or about June 6, 1977, Sand ordered from defendant Airtemp, an air conditioning manufacturer, four motor driven hermetic centrifugal chillers, including accessories, for installation in the Port Authority Bus Terminal. Sand submitted a purchase order containing its terms and conditions of sale through Airtemp's sales representative, Charles J. Duwe Sales, Inc. Airtemp's receipt of the purchase order on June 13, 1977 is indicated by stamp on its face.
Customary to its policy and practice, Airtemp claims to have forwarded its terms and conditions of sale to Sand by way of an order acknowledgment form. Despite Airtemp's claim, Sand denies ever receiving the order confirmation form containing said terms and conditions. Strikingly, no physical record of an order acknowledgment form with regard to this particular sale exists. The only evidence before this court regarding the alleged procedure is a sworn affidavit of Fred Hagee, president of Airtemp at the time of the sale; the deposition of an employee, E. Duane Lynn, and the claimed reverse side of an acknowledgment form containing Airtemp's terms and conditions of sale.
The Hagee affidavit merely states "It was Airtemp's policy and procedure to automatically send to each prospective customer a printed form containing Airtemp's terms and conditions of sale." (Hagee Affidavit, sworn to August 11, 1988). E. Duane Lynn, Director of Service at Airtemp at the time of this transaction, testified as follows:
(Lynn Deposition, sworn to March 1, 1984 at p. 20).
The four chillers were manufactured by Airtemp at its plant in Bowling Green, Kentucky. Chillers # 1, # 2 and # 3 were tested during the week of January 3, 1978. Chiller # 4 was not tested at Airtemp's Bowling Green plant because the company was in the process of relocating its plant to Edison, New Jersey, and the fourth unit was finished after the Bowling Green test stand had been disconnected. All four chillers were shipped to Sand's agent, Associated Rigging and Hauling Corporation ("Associated") between January 31 and March 31, 1978.1
In November 1978, once the Edison test stand was assembled, arrangements were made to ship chiller # 4 from Associated to Airtemp's Edison plant; the fourth chiller was tested there in December 1978 with Port Authority witnesses and returned in January 1979.
The Port Authority/Carlin Atlas renovation project fell far behind schedule and the installation and start up of the chillers was significantly delayed as a result.2 As early as April 1978 Sand began to complain to Carlin Atlas about the delays and the resulting costs. The delays continued and Sand continued to protest in writing to Carlin Atlas. The original projected completion date for the machines was between July and October 1978; however, the delays continued and the chillers were not actually started up until 1980.
Plaintiff claims that upon start up, in May 1980, it discovered for the first time that the chillers did not function properly and immediately notified defendant.3 Defendant refused to perform any work on the chillers without additional payment. Hence, plaintiff performed the necessary repairs on its own and now seeks over one million dollars in damages as a result of defendant's refusal to honor the alleged governing warranty.
In support of its claims, plaintiff alleges that plans and specifications for the manufacture of the chillers were forwarded to defendant by Port Authority. According to plaintiff, this "required Airtemp to provide the chillers with certain performance capabilities, including 1800 GPM capacity for chilled water, 2620 GPM capacity for condenser water as well as numerous other requirements which could only be determined after installation...." (Joint PreTrial Order, at 5). In addition, Airtemp was required to provide "trained representatives for a period of three days per machine to assist in the start up of each of the chillers," (Id. at 6) and "certain testing was to be performed by Airtemp subsequent to installation of the chillers." (Id. at 5-6). The Port Authority plans and specifications have not been submitted to this court.
Originally, Sand brought an action against Airtemp's then parent, Fedders Corporation, on December 16, 1982. The parties stipulated that Sand would discontinue that action and, for statute of limitation purposes, any action by Sand against Airtemp would be deemed to have been started on the date the Fedders lawsuit was filed.
The purchase order Sand submitted to Airtemp contains information particular to this sale. It reads in pertinent part:
(Sherman Affidavit Ex. C).
Pre-printed on the bottom left portion of the form is standard language applicable to all Sand purchases:
The reverse side of the purchase order contains plaintiff's pre-printed "general conditions and instructions," including its warranty which states:
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