Emerald Painting, Inc. v. PPG Industries, Inc.
| Decision Date | 16 February 1984 |
| Citation | 99 A.D.2d 891,472 N.Y.S.2d 485 |
| Parties | , 38 UCC Rep.Serv. 144 EMERALD PAINTING, INC., Respondent, v. PPG INDUSTRIES, INC., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Bohl, Clayton, Komar & Della Rocca, P.C., Albany (Myron Komar, Albany, of counsel), for appellant.
Couch & Howard, P.C., Albany (Joel M. Howard, III, Albany, of counsel), for respondent.
Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.
Appeal (1) from a judgment of the Supreme Court in favor of plaintiff, entered April 15, 1983 in Albany County, upon a verdict rendered at Trial Term, and (2) from an order of said court, entered July 22, 1983 in Albany County, which denied defendant's motion to set aside the verdict.
Plaintiff, a painting contractor, was awarded a subcontract to do the painting in connection with a project to construct a mill for Seaboard Allied Mill in the City of Albany. Part of the subcontract involved painting the interior of 36 concrete silos. The contract price for this portion of the subcontract was $34,000. Bid specifications required that blue resin epoxy paint be applied over white primer or sealer. Federal regulations required the final coat of blue resin epoxy paint because the silos were to contain food.
Plaintiff decided to purchase materials, including an epoxy paint brandnamed "Polyclutch", from defendant, a corporation which manufactured and sold paint. Plaintiff's president dealt with the manager of one of defendant's stores who was, concededly, familiar with the purpose for which the paint was to be used. Defendant's representative advised plaintiff's president that Polyclutch was designed to be used without a primer or sealer. Plaintiff's president testified that he advised defendant's representative that the specifications required the use of a sealer and that defendant's representative recommended the "6-2" sealer. Defendant's representative testified that he never recommended that 6-2 sealer be used under Polyclutch. Defendant introduced evidence that 6-2 sealer was not recommended for use with Polyclutch and that its literature dealing with Polyclutch, which defendant's representative claims he gave to plaintiff's president, explains this. There was also evidence that the substrate was not properly prepared.
In any event, after the Polyclutch was applied over the 6-2 sealer, large portions of the final coat peeled off. Plaintiff had to remove the Polyclutch and sealer and repaint the interior of the silos with another product. Plaintiff then commenced this action for breach of warranty. After trial, a verdict in favor of plaintiff was returned in the amount of $225,000. Plaintiff's complaint had sought only $125,000. Plaintiff's motion to raise the amount sought in the ad damnum clause was granted and defendant's motion to set aside the verdict was denied. This appeal by defendant ensued.
We reject defendant's contention that plaintiff failed to present a prima facie cause of action for breach of warranty and that the verdict was against the weight of the evidence.
Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose (Uniform Commercial Code, § 2-315).
Plaintiff's proof established that defendant's representative was aware that the bid specifications required a resin epoxy paint over a sealer and recommended that Polyclutch be used over 6-2 sealer, that plaintiff relied on such recommendation, and that the sealer was not fit for use under the Polyclutch. Thus, plaintiff clearly established a prima facie case. Moreover, the issues of warranty and breach thereof are generally questions of fact for the jury to resolve (Berton Plastics v. Chemung Fiberglass Prods., 96 A.D.2d 665, 666, 466 N.Y.S.2d 499). The jury chose to credit plaintiff's evidence and such evidence clearly supported the verdict.
Defendant also challenges several aspects of the jury charge. Only one of defendant's contentions was preserved for review by a...
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