Hemming v. Certainteed Corp.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before HANCOCK
• Citation: Hemming v. Certainteed Corp., 97 A.D.2d 976, 468 N.Y.S.2d 789 (N.Y. App. Div. 1983)
• Decision Date: 04 November 1983
• Parties: Kenneth J. HEMMING, Alexandra A. Hemming, Richard W. Shipherd, Charlene M. Shipherd, Douglas J. Klein, Elaine M. Klein, Jan Ketel and Barbara Ketel and all others similarly situated, Respondents-Appellants, v. CERTAINTEED CORPORATION, and National Gypsum Company and GAF Corporation, Appellants-Respondents, and United States Gypsum Company, Defendant.

Page 789

468 N.Y.S.2d 789

97 A.D.2d 976

Kenneth J. HEMMING, Alexandra A. Hemming, Richard W Shipherd, Charlene M. Shipherd, Douglas J. Klein, Elaine M Klein, Jan Ketel and Barbara Ketel and all others similarly situated, Respondents-Appellants, v. CERTAINTEED CORPORATION, and National Gypsum Company and GAF Corporation, Appellants-Respondents and United States Gypsum Company, Defendant.

Supreme Court, Appellate Division Fourth Department.

Nov. 4, 1983.

Connors, Corcoran, Hall & Meyering by Eileen Buholtz, Rochester, for appellant-respondent Certainteed Corp.

Goldstein, Goldman, Kessler & Underberg by Gordon Lipson, Rochester, for appellant-respondent GAF Corp. Nixon, Hargrave, Devans & Doyle by Edward Burns, Rochester, for appellant-respondent National Gypsum.

Shoolman & Shoolman by Carl Shoolman, Rochester, for respondents-appellants.

Before HANCOCK, J.P., and CALLAHAN, DENMAN, BOOMER and MOULE, JJ.

MEMORANDUM:

These appeals are from two companion class actions brought by plaintiffs seeking money damages for harm allegedly caused to their homes by defective siding systems manufactured by defendants. Certain of the defendants appeal the denial of their motions to dismiss the complaint for failure to state a cause of action for strict liability, negligence and breach of express warranty. Plaintiffs, in both actions, cross-appeal the same orders insofar as they granted dismissal of the causes of action for class and individual relief for deceptive business acts and false advertising (General Business Law, §§ 349, 350) and from those parts of the orders dismissing their claims for the costs of residing their homes.

Special Term held that a claim was stated in both negligence and strict liability for property damage caused to the homes but not to the siding system itself except to the extent the replacement of siding was necessary to repair damage to other parts of the homes. Special Term erred in reaching this conclusion.

In Schiavone Constr. Co. v. Mayo Corp., 56 N.Y.2d 667, 451 N.Y.S.2d 720, 436 N.E.2d 1322, revg 81 A.D.2d 221, 439 N.Y.S.2d 933 on the dissenting opinion below, the Court of Appeals adopted limitations on tort recovery based on product failure. The court held that, when damage suffered by a plaintiff is the result of a nonaccidental cause, such as deterioration or breakdown of the product itself, the injury is properly characterized as "economic loss" and plaintiff is relegated to contractual remedies. This decision reflects the principle that defects related to the quality of the product, e.g., product performance, go to the expectancy of the parties (loss of bargain) and are not recoverable in tort (see, also, Cayuga Harvester v. Allis-Chalmers Corp., 95 A.D.2d 5, 465 N.Y.S.2d 606; Hole v. General Motors Corp., 83 A.D.2d 715, 442 N.Y.S.2d 638; Dudley Constr. v. Drott Mfg. Co., 66 A.D.2d 368, 412 N.Y.S.2d 512). Moreover, the "economic loss" rule applies equally to negligence and strict liability causes of action...