Burnell v. Morning Star Homes, Inc.
| Decision Date | 24 October 1985 |
| Parties | , Prod.Liab.Rep. (CCH) P 10,740 Gary BURNELL et al., Appellants, v. MORNING STAR HOMES, INC., Defendant, and Standard Manufactured Homes, Inc., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Fischer, Hughes, Bessette & Edwards, Malone, for appellants.
Conboy, McKay, Bachman & Kendall, Watertown, for respondents.
Before MAIN, J.P., and CASEY, WEISS, YESAWICH and LEVINE, JJ.
Appeal from an order of the Supreme Court at Special Term, (Cerrito, J.), entered November 15, 1984 in Franklin County, which, inter alia, granted a motion by defendants Standard Manufactured Homes, Inc. and Standard Coach Company, Inc. for partial summary judgment.
Plaintiffs purchased a "Holiday Cottage" mobile home from defendant Morning Star Homes, Inc. (Morning Star) on March 29, 1979. The mobile home was manufactured and distributed for sale by defendants Standard Coach Company, Inc. (Standard Coach) and Standard Manufactured Homes, Inc. (Standard Manufactured). The sales contract included a limited warranty which provided,inter alia:
The remedies afforded by this warranty are expressly limited to the replacement or repair of parts defective as above stated. Standard Coach Company, Inc. expressly disclaims any responsibility or liability for consequential damages arising from the use, operation, or transportation of any Standard Coach Mobile Home, or parts thereof, including loss of time, inconvenience, expenses for gasoline, telephone, travel, lodging, loss or damage to personal property or loss of revenue (emphasis in original).
Plaintiffs claimed several defects in the mobile home, which Standard Manufactured and Morning Star attempted to repair on several occasions. Contending that the attempted repairs failed to correct the defects, which resulted in exposure to rain and freezing of pipes during cold spells, plaintiffs commenced this action for breach of express, implied and statutory warranties, breach of contract, negligence and strict products liability. As items of damage, plaintiffs claimed counsel fees, consequential damages, pain and suffering, punitive damages, aggravation of a preexisting heart condition, telephone bills and lost employment. Although the mobile home cost $27,500, plaintiffs demanded $100,000 for their causes of action "first" through "fourth", and $250,000 for their strict liability and negligence claims.
Standard Manufactured and Standard Coach (hereinafter defendants) moved for partial summary judgment dismissing plaintiffs' "fourth" and "fifth" causes of action and plaintiffs' claims for aggravation of a preexisting heart condition, emotional distress, mental anguish, pain and suffering, consequential damages, counsel fees and punitive damages. Plaintiffs cross-moved to amend their complaint to include an action based under the Federal Warranty Act. Special Term granted defendants' motion, but also allowed plaintiffs to amend their complaint. Plaintiffs appeal the order granting defendants' motion.
The consequential damages claimed by plaintiffs are expressly disclaimed by the provision of the sales contract previously quoted (Cayuga Harvester, Inc. v. Allis-Chalmers Corp., 95 A.D.2d 5, 465 N.Y.S.2d 606). Plaintiffs contend that such limitation or exclusion is unconscionable under UCC 2-719(3) because defendants enjoyed a superior bargaining power. The mere exercise of superior bargaining power, however, is not a sufficient basis for...
To continue reading
Request your trial
-
Oreman Sales, Inc. v. Matsushita Elec. Corp., Civ. A. No. 90-4947.
...(E.D.N.Y.1988). 17 Rubin v. Telemet America, Inc., 698 F.Supp. 447, 450 (S.D.N.Y.1988) (citing Burnell v. Morning Star Homes Inc., 114 A.D.2d 657, 658, 494 N.Y.S.2d 488, 490 (3d Dep't 1985)); see Triple T, 60 Misc.2d at 730, 304 N.Y.S.2d at 202. 18 Graham, 646 F.Supp. at 1418; see Rubin, 69......
-
Key Intern. Mfg., Inc. v. Morse/Diesel, Inc.
...Bldrs., supra, at 162, 521 N.Y.S.2d 165, citing Butler v. Caldwell & Cook, 122 A.D.2d 559, 505 N.Y.S.2d 288; Burnell v. Morning Star Homes, 114 A.D.2d 657, 659, 494 N.Y.S.2d 488; Hemming v. Certainteed Corp., 97 A.D.2d 976, 468 N.Y.S.2d 789, appeal dismissed 61 N.Y.2d 758; Queensbury Union ......
-
Waverly Props., LLC v. KMG Waverly, LLC
...with what the parties intended in the event of a failure by the sponsor to perform.” Id. (quoting Burnell v. Morning Star Homes, Inc., 114 A.D.2d 657, 494 N.Y.S.2d 488 (3d Dep't 1985)). The court's decision in 430 West 23rd Street is based on the well-established principle that a buyer of g......
-
American Dredging Co. v. Plaza Petroleum Inc.
...exercise of superior bargaining power is not a sufficient basis for a finding of unconscionability. See Burnell v. Morning Star Homes, 114 A.D.2d 657, 494 N.Y.S.2d 488 (3rd Dep't 1985). Because the limitation of damages was properly incorporated into the contract, it must be treated as part......