International Fidelity Ins. Co. v. Gaco Western, Inc.
| Decision Date | 15 July 1996 |
| Docket Number | No. 1,No. 2,1,2 |
| Citation | 645 N.Y.S.2d 522,229 A.D.2d 471 |
| Parties | INTERNATIONAL FIDELITY INSURANCE COMPANY, Appellant-Respondent, v. GACO WESTERN, INC., Respondent-Appellant, Wiedersum Associates, P.C., Respondent, et al., Defendant (Action). INTERNATIONAL FIDELITY INSURANCE COMPANY, Appellant-Respondent, v. WIEDERSUM ASSOCIATES, P.C., Respondent, Gaco Western, Inc., Respondent-Appellant (Action). |
| Court | New York Supreme Court — Appellate Division |
Solomon, Zauderer, Ellenhorn, Frischer & Sharp, New York City (Bertrand C. Seller, of counsel), for appellant-respondent.
Bracken & Margolin, Islandia (John K. Diviney, of counsel), for respondent-appellant.
Graham, Stephens & McMorrow, Westbury (Tara A. Labella, of counsel), for respondent.
Before ROSENBLATT, J.P., and RITTER, COPERTINO and JOY, JJ.
MEMORANDUM BY THE COURT.
In two related actions to recover damages, inter alia, for breach of contract and negligence, which were joined by the Supreme Court for purposes of pretrial proceedings, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Lama, J.), dated March 24, 1995, as denied its motion for partial summary judgment and for leave to amend its complaints insofar as asserted against the defendant Wiedersum Associates, P.C. The defendant Gaco Western, Inc., cross-appeals from so much of the same order as denied its motion for summary judgment dismissing the complaints and all cross claims insofar as asserted against it.
ORDERED that the order is modified by (1) deleting the provision thereof which denied the branches of the motions of the defendant Gaco Western, Inc. which were for summary judgment dismissing the complaints insofar as they asserted causes of action on behalf of the plaintiff as assignee/subrogor of various subcontractors and substituting therefor a provision granting those branches of the motions, (2) deleting the provision thereof which denied the branches of the motions of the defendant Gaco Western, Inc. which were for summary judgment dismissing the complaints insofar as they asserted causes of action on behalf of the plaintiff as assignee/subrogor of the school districts as third-party beneficiaries under certain agreements between Jervin Construction Company and Gaco Western, Inc., and substituting therefor a provision granting those branches of the motions and (3) deleting the provision thereof which denied the branch of the plaintiff's motion which was for leave to amend its complaints as against the defendant Wiedersum Associates, P.C. and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The two cases at bar, which were joined by the Supreme Court for purposes of pretrial proceedings, arise from the alleged breach of three contracts for roofing projects in Suffolk County.
In 1984, the defendant Wiedersum Associates, P.C. (hereinafter Wiedersum) was hired by the East Islip Union Free School District to provide architectural and engineering services concerning a contract for the re-roofing of several schools. Prior to preparation of the roofing specifications, Wiedersum consulted with Jim Freemesser, a representative of the defendant Gaco Western, Inc. (hereinafter Gaco). Gaco is a corporation engaged in the manufacture of roofing materials. Freemesser met with members of Wiedersum and provided them with catalogs and a seminar on Gaco products. Further, Freemesser provided Wiedersum with an outline of the inspections Gaco would undertake to ensure that the roofing materials would be applied properly and that a warranty on the work would issue. Wiedersum thereafter prepared the roofing specifications incorporating in substantial part the model specifications provided by Gaco. Further, the specifications designated Gaco's product as an acceptable roofing material and required that "[t]he Roofing System shall be installed by a factory approved, certified contractor under the continuous supervision of a trained representative of the materials formulator". Wiedersum was thereafter hired in 1985 by the Wantagh Union Free School District and, in 1987, by the Connetquot School District to provide similar services. The roofing specifications drafted by Wiedersum in each case were substantially similar to the specifications drafted for East Islip. (The three school systems will hereinafter be referred to collectively as the districts).
On August 12, 1985, Jervin Construction Company (hereinafter Jervin) was approved as "an authorized applicator" of Gaco products. An agreement between Gaco and Jervin required Jervin to use Gaco products, to apply them in accordance with Gaco's specifications, and to designate a foreman to supervise application of the products. Gaco in turn agreed to sell Jervin Gaco materials at contractor's prices, "recognize" Jervin as an "approved applicator", and "so advise prospective customers". Further, Gaco agreed to "supply training assistance to ensure that your specialist is well qualified to apply our materials". Gaco renewed Jervin's approved applicator status for 1986 and 1987. In addition, Gaco supplied Jervin with a statement of policy concerning the method for securing a warranty for the completed roofs. Such a warranty was required by the contracts at issue. Pursuant to the statement of policy, Gaco would inspect the premises at least three times: prior to, during, and at the completion of an installation. If the installation was properly accomplished, a warranty would issue upon payment of a fee.
Jervin was the lowest qualified bidder and was awarded each of the three roofing contracts with the districts. Pursuant to the contracts, Jervin obtained performance, materials, and labor bonds from the plaintiff herein, International Fidelity Insurance Company (hereinafter IFIC). Ultimately, Jervin defaulted on all three contracts with the districts. Accordingly, IFIC was called upon to perform and eventually settled all claims arising from Jervin's breach. In the two actions at bar, IFIC, as assignee/subrogor of the claims of Jervin, the districts, and certain subcontractors on the projects, commenced suit against, inter alia, Gaco and Wiedersum. Action No. 1 was commenced by IFIC as assignee/subrogor of Wantagh and Connetquot. Action No. 2 was commenced by IFIC as assignee/subrogor of East Islip. In both actions, Gaco moved for summary judgment dismissing all causes of action asserted against it. IFIC cross-moved for summary judgment on a cause of...
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