International Fidelity Ins. Co. v. Gaco Western, Inc., No. 1

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore ROSENBLATT
Citation645 N.Y.S.2d 522,229 A.D.2d 471
PartiesINTERNATIONAL 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).
Decision Date15 July 1996
Docket NumberNo. 1,No. 2

Page 522

645 N.Y.S.2d 522
229 A.D.2d 471
INTERNATIONAL FIDELITY INSURANCE COMPANY, Appellant-Respondent,
v.
GACO WESTERN, INC., Respondent-Appellant,
Wiedersum Associates, P.C., Respondent, et al., Defendant
(Action No. 1).
INTERNATIONAL FIDELITY INSURANCE COMPANY, Appellant-Respondent,
v.
WIEDERSUM ASSOCIATES, P.C., Respondent,
Gaco Western, Inc., Respondent-Appellant (Action No. 2).
Supreme Court, Appellate Division,
Second Department.
July 15, 1996.

Page 523

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 [229 A.D.2d 472] 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

Page 524

(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,[229 A.D.2d 473] 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...

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14 practice notes
  • Banco Multiple Santa Cruz, S.A. v. Moreno, No. 08–CV–1271 (JG)(ALC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 31, 2012
    ...Aircraft Serv.-Int'l, Inc., 14 A.D.2d 749, 749, 220 N.Y.S.2d 485 (N.Y.App.Div.1961); see also Int'l Fid. Ins. Co. v. Gaco Western, 229 A.D.2d 471, 474, 645 N.Y.S.2d 522 (N.Y.App.Div.1996) (“A person charged with performing work under a contract must exercise reasonable skill and care in per......
  • Landon v. Kroll Lab. Specialists, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • November 22, 2011
    ...86, 239 N.E.2d 189; Bandier v. Tim Blenk Tree Care, Inc., 57 A.D.3d 595, 596, 869 N.Y.S.2d 215; International Fid. Ins. Co. v. Gaco W., 229 A.D.2d 471, 474, 645 N.Y.S.2d 522). “The very nature of a contractual obligation, and the public interest in seeing it performed with reasonable care, ......
  • Logan-Baldwin v. L.S.M. Gen. Contractors, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • April 20, 2012
    ...230, 231–232, 762 N.Y.S.2d 92, lv. denied 100 N.Y.2d 515, 769 N.Y.S.2d 201, 801 N.E.2d 422; International Fid. Ins. Co. v. Gaco W., 229 A.D.2d 471, 474, 645 N.Y.S.2d 522). That is, perhaps, because the materials could, in theory, be used by anyone at any property. We note that the court her......
  • SEI Invs. Global Funds Servs. v. Citibank, N.A., Civil Action No. 14–5972.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • April 21, 2015
    ...profession. Bloomsburg Mills, Inc. v. Sordoni Constr. Co., 401 Pa. 358, 164 A.2d 201, 203 (1960) ; Int'l Fid. Ins. Co. v. Gaco W., Inc., 229 A.D.2d 471, 645 N.Y.S.2d 522, 525 (1996).1 The Agreement reflects this jurisprudential principle in that it contains a specific provision requiring Ci......
  • Request a trial to view additional results
14 cases
  • Banco Multiple Santa Cruz, S.A. v. Moreno, No. 08–CV–1271 (JG)(ALC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 31, 2012
    ...Aircraft Serv.-Int'l, Inc., 14 A.D.2d 749, 749, 220 N.Y.S.2d 485 (N.Y.App.Div.1961); see also Int'l Fid. Ins. Co. v. Gaco Western, 229 A.D.2d 471, 474, 645 N.Y.S.2d 522 (N.Y.App.Div.1996) (“A person charged with performing work under a contract must exercise reasonable skill and care in per......
  • Landon v. Kroll Lab. Specialists, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • November 22, 2011
    ...86, 239 N.E.2d 189; Bandier v. Tim Blenk Tree Care, Inc., 57 A.D.3d 595, 596, 869 N.Y.S.2d 215; International Fid. Ins. Co. v. Gaco W., 229 A.D.2d 471, 474, 645 N.Y.S.2d 522). “The very nature of a contractual obligation, and the public interest in seeing it performed with reasonable care, ......
  • Logan-Baldwin v. L.S.M. Gen. Contractors, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • April 20, 2012
    ...230, 231–232, 762 N.Y.S.2d 92, lv. denied 100 N.Y.2d 515, 769 N.Y.S.2d 201, 801 N.E.2d 422; International Fid. Ins. Co. v. Gaco W., 229 A.D.2d 471, 474, 645 N.Y.S.2d 522). That is, perhaps, because the materials could, in theory, be used by anyone at any property. We note that the court her......
  • SEI Invs. Global Funds Servs. v. Citibank, N.A., Civil Action No. 14–5972.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • April 21, 2015
    ...profession. Bloomsburg Mills, Inc. v. Sordoni Constr. Co., 401 Pa. 358, 164 A.2d 201, 203 (1960) ; Int'l Fid. Ins. Co. v. Gaco W., Inc., 229 A.D.2d 471, 645 N.Y.S.2d 522, 525 (1996).1 The Agreement reflects this jurisprudential principle in that it contains a specific provision requiring Ci......
  • Request a trial to view additional results

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