Gruet v. Care Free Housing Division of Kenn-Schl Enterprises, Inc.

• Decision Date: 02 May 2003
• Citation: Gruet v. Care Free Housing Division of Kenn-Schl Enterprises, Inc., 305 A.D.2d 1060, 759 N.Y.S.2d 276 (N.Y. App. Div. 2003)
• Parties: MICHAEL P. GRUET et al., Respondents,<BR>v.<BR>CARE FREE HOUSING DIVISION OF KENN-SCHL ENTERPRISES, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

305 A.D.2d 1060

759 N.Y.S.2d 276

MICHAEL P. GRUET et al., Respondents,

v.CARE FREE HOUSING DIVISION OF KENN-SCHL ENTERPRISES, INC., Appellant.

Decided May 2, 2003.

Present — Pigott, Jr., P.J., Hurlbutt, Scudder, Lawton and Hayes, JJ.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting in part defendant's motion and dismissing the breach of contract claims arising from the alleged breach of the purchase agreement for the modular home and the claims for negligent delivery and set-up of the modular home and as modified the order is affirmed without costs.

Memorandum:

Defendant appeals from an order denying its motion for summary judgment dismissing the amended complaint without prejudice to refiling within 45 days after the completion of depositions. We agree with defendant that the order is appealable despite the fact that Supreme Court denied defendant's motion without prejudice (cf. Fisher v Ives, 251 AD2d 1022 [1998]). We further agree with defendant that the court erred in denying that part of its motion with respect to breach of contract claims arising from the alleged breach of the purchase agreement for the modular home sold by defendant to plaintiffs. The purchase agreement, which also encompassed delivery and set-up of the modular home, contains a one-year statute of limitations for commencement of an action for breach of contract. A contract for the sale and delivery of a modular home is essentially a contract for the sale of goods governed by UCC article 2 (see Gianakakos v Commodore Home Sys., 285 AD2d 907, 908 [2001], lv denied 97 NY2d 606 [2001]; Hull v Moore's Mobile Homes Stebra, 214 AD2d 923, 924 [1995]) and, pursuant to UCC 2-725 (1), the parties to such a contract may agree to reduce the statute of limitations to not less than one year. Thus, any claims for breach of the purchase agreement are barred by the contractual statute of limitations (see generally Gianakakos, 285 AD2d at 908). We do not reach plaintiffs' contention, raised for the first time on appeal, that the provision is unenforceable because the purchase agreement is an adhesion contract (see generally Ciesinski v Town of Aurora, 202 AD2d 984, 985 [1994]).

In addition, we agree with defendant that the court erred in denying that part of its motion with respect to the claims for negligent delivery and set-up of the modular home inasmuch as those claims are subsumed in the breach of contract claims arising from the alleged breach of the purchase agreement. "It is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the...