Fischer v. Zervas
| Decision Date | 22 September 2021 |
| Docket Number | Index No. EF2018-65546 |
| Citation | 153 N.Y.S.3d 823 (Table),73 Misc.3d 1207 (A) |
| Parties | Carolyn FISCHER and William Fischer, Plaintiffs, v. Gary ZERVAS and Adirondack Mountain Ridge Estates d/b/a Adirondocks, LLC, Defendants. Gary Zervas and Adirondack Mountain Ridge Estates d/b/a Adirondocks, LLC, Third-Party Plaintiffs, v. Allerdice Building Supply, Inc., Third-Party Defendant. |
| Court | New York Supreme Court |
FitzGerald Morris Baker Firth, P.C., Glens Falls (Joshua D. Lindy of counsel), for plaintiffs.
Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (John D. Wright of counsel), for defendants/third-party plaintiffs.
Mastropietro Law Group, PLLC, Saratoga Springs (John P. Mastropietro of counsel), for third-party defendant.
Plaintiffs Carolyn and William Fischer own lakefront property located on Lake George in the Town of Hague, Warren County. In August 2016, plaintiffs contracted with defendant/third-party plaintiff Adirondack Mountain Ridge Estates d/b/a Adirondocks, LLC (hereinafter Adirondocks) relative to the demolition of their existing dock and the installation of a new one. Adirondocks is owned by defendant/third-party plaintiff Gary Zervas.
While Adirondocks apparently recommended Ipe decking for the new dock, plaintiffs instead chose Red Balau decking — a less costly alternative. Adirondocks then ordered the Red Balau decking from third-party defendant Allerdice Building Supply, Inc. (hereinafter Allerdice) and completed installation of the dock in November 2016. In April 2017, plaintiffs contacted Adirondocks to advise of certain defects in the dock. Zervas inspected the dock and noted "that a few pieces of the decking material had begun to cup and/or check.1 Adirondocks "replaced [those pieces], but ... over time, [the problem] got worse." Zervas ultimately concluded that the Red Balau decking was defective and he contacted Allerdice, who then sent Donald Cox — its Sales Manager — to inspect the dock. Cox, however, concluded that any defects in the dock resulted from improper installation.
In July 2018, plaintiffs commenced this action against defendants/third-party plaintiffs (hereinafter referred to as defendants) alleging, inter alia , that they "did not perform the work [on] the dock in a good and workmanlike manner." Issue was joined and, in January 2019, defendants commenced a third-party action against Allerdice alleging that the material supplied "was either ill-suited for [the] particular project and climate and/or [was] delivered to [Adirondocks] in a damaged or defective state." Issue was joined in this third-party action as well and, in May 2019, Allerdice filed a motion for summary judgment seeking to dismiss the third-party complaint. By Decision and Order dated August 20, 2019, the motion was denied as premature and discovery has since been completed. Presently before the Court is Allerdice's second motion for summary judgment seeking to dismiss the third-party complaint.
On a motion for summary judgment, the movant must establish, by admissible proof, its entitlement to judgment as a matter of law (see Gilbert Frank Corp. v Federal Ins. Co. , 70 NY2d 966, 967 [1988] ; Alvarez v Prospect Hosp. , 68 NY2d 320, 324 [1986] ). Once the movant has met this initial burden, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of fact (see Zuckerman v City of New York , 49 NY2d 557, 560 [1980] ).
At the outset, it should be noted that Allerdice failed to attach "a copy of the pleadings" to its motion, as required under CPLR 3212 (b). That being said, such failure was not addressed by defendants in their opposition to the motion and cannot be raised by the Court sua sponte (see Mew Equity, LLC v Sutton Land Servs., LLC , 144 AD3d 874, 877 [2016] ). The failure constitutes a mere irregularity in any event, given the availability of the pleadings on NYSCEF (see id. ).2
To the extent that this dispute concerns Allerdice's sale of goods — namely, the Red Balau decking — it is governed by article 2 of the Uniform Commercial Code (UCC) (see Sears, Roebuck & Co. v Galloway , 195 AD2d 825, 826 [1993] ), which includes an implied warranty of merchantability and an implied warranty of fitness for a particular purpose. Allerdice first contends that the implied warranty of merchantability is inapplicable.
" ‘The implied warranty of merchantability is a guarantee by the seller that its goods are fit for the intended purpose for which they are used and that they will pass in the trade without objection’ " ( Wojcik v Empire Forklift, Inc. , 14 AD3d 63, 66 [2004], quoting Saratoga Spa & Bath v Beeche Sys. Corp. , 230 AD2d at 330 [citation omitted]). "To establish that a product is defective for purposes of a breach of implied warranty of merchantability claim, a plaintiff must show that the product was not ‘reasonably fit for [its] intended purpose’ " ( Wojcik v Empire Forklift, Inc. , 14 AD3d at 66, quoting Saratoga Spa & Bath v Beeche Sys. Corp. , 230 AD2d at 330 ; see UCC 2—314 [2] [c] ), with this inquiry " ‘focus[ing] on the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners’ " ( Wojcik v Empire Forklift, Inc. , 14 AD3d at 66 ; Denny v Ford Motor Co. , 87 NY2d 248, 258-259 [1995] ).
Here, Allerdice has submitted the transcript of Zervas' deposition testimony which states that the decking "looked great" upon delivery, and the project "looked very nice" upon completion. Allerdice has further submitted an affidavit from Cox, who opines that the decking failed several months after completion because of defendants' failure to follow the manufacturer's guidelines during installation. In this regard, Cox identifies "Nelson International[ as] the manufacturer of the material at issue," and further states as follows:
It is undisputed that defendants (1) stored the decking material outside prior to installation; (2) failed to seal the decking material prior to installation and in fact did not do so until the following spring, at which time only the top of the dock was sealed; (3) installed 6" wide stock less than 36" above the ground and water level;3 and (4) installed the decking material using hidden fasteners.
With these submissions Allerdice has succeeded in demonstrating that the implied warranty of merchantability is inapplicable as a matter of law, thus shifting the burden to defendants to raise a triable issue of fact.
In this regard, defendants submit the affidavit of Zervas, who states that Allerdice never provided defendants with a copy of Nelson International's Installation Essentials pamphlet, nor did it even advise that Nelson International was the manufacturer of the decking. Zervas further states that Allerdice supplied the hidden fasteners for the project, and grooved the decking for these hidden fasteners before delivery. According to Zervas, at no point did Allerdice suggest that hidden fasteners should not be used when installing the dock. Zervas also indicates that he never seals decking material prior to installation and had no reason to believe such sealing was required with the Red Balau decking.
The Court finds that defendants have succeeded in raising a triable issue of fact. To the extent that Allerdice specifically grooved the Red Balau decking for hidden fasteners prior to delivery, the argument can certainly be made that the product — as delivered — was not reasonably fit for its intended purpose.
Briefly, Allerdice contends that defendants failed to reject the decking within a reasonable time, as required under UCC 2-607 (3) (a). That being said, "[t]imely notification under [UCC] 2-607 ‘is governed by the standard of reasonableness and is a question of fact’ " ( Cliffstar Corp. v Elmar...
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