Lexow & Jenkins, P.C. v. Hertz Commercial Leasing Corp.

• Decision Date: 07 July 1986
• Citation: 504 N.Y.S.2d 192,122 A.D.2d 25
• Court: New York Supreme Court — Appellate Division
• Parties: LEXOW & JENKINS, P.C., Appellant, v. HERTZ COMMERCIAL LEASING CORPORATION, a/k/a HCL Leasing Corporation, et al., Respondents.

Page 192

504 N.Y.S.2d 192

122 A.D.2d 25

LEXOW & JENKINS, P.C., Appellant, v. HERTZ COMMERCIAL LEASING CORPORATION, a/k/a HCL Leasing Corporation, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

July 7, 1986.

Robert E. Blackburn, Suffern (Paul W. Barnard, of counsel), for appellant.

Ford, Marrin, Esposito & Witmeyer, New York City (Michael L. Anania, of counsel), for respondent Toshiba America, Inc.

Before MANGANO, J.P., and BROWN, WEINSTEIN and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for breach of implied warranties of fitness and merchantability, the plaintiff appeals from an order of the Supreme Court, Rockland County (Colabella, J.), entered March 12, 1985, which (1) granted the motion of the defendant Toshiba America, Inc. (hereinafter Toshiba), pursuant to CPLR 3211(a)(7), to dismiss the causes of action asserted against Toshiba (first and third causes of action), and (2) denied the plaintiff's cross motion, pursuant to CPLR 3211(a)(7), to dismiss the four counterclaims against the plaintiff asserted by the defendant ZNO Corporation (hereinafter ZNO).

Order modified, on the law, by deleting the provision thereof denying that branch of the plaintiff's cross motion which was to dismiss the defendant ZNO's third counterclaim, and substituting therefor a provision granting that branch of the motion. As so modified, order affirmed, without costs or disbursements.

In July 1982 the plaintiff, a professional corporation, entered into negotiations with representatives of ZNO for the purchase of two copiers for use in its law firm. The copiers were purchased through a lease-purchase agreement with the defendant Hertz Commercial Leasing Corporation (hereinafter HCL), in which agreement ZNO is listed as the vendor. The plaintiff asserts that the copiers were defective, unfit for the use intended and had to be discarded. The plaintiff commenced this action against HCL, ZNO and Toshiba, the manufacturer of the copiers. The claims against Toshiba are set forth in the first and third causes of action grounded in breach of implied warranties of fitness and merchantability, causing solely economic loss to the plaintiff.

Toshiba moved to dismiss the complaint for failure to state a cause of action. The plaintiff cross-moved on the same ground to dismiss all four counterclaims asserted against plaintiff by the defendant ZNO. Special Term granted Toshiba's motion and denied the plaintiff's cross motion.

Special Term correctly concluded that there was no privity of contract between the plaintiff and Toshiba. It is now settled that no implied warranty will extend from a manufacturer to a remote purchaser not in privity with the manufacturer where only economic loss and not personal injury is alleged (Arthur Jaffee Assoc. v. Bilsco Auto Serv., 58 N.Y.2d 993, 461 N.Y.S.2d 1007, 448 N.E.2d 792; Miller v. General Motors Corp., 99 A.D.2d 454, 471 N.Y.S.2d 280, affd. 64 N.Y.2d 1081, 489 N.Y.S.2d 904, 479 N.E.2d 249; Hole v. General Motors Corp., 83 A.D.2d 715, 442 N.Y.S.2d 638). As stated in Hole v. General Motors Corp. (supra, at p. 716, 442 N.Y.S.2d 638).

"The question thus presented is whether the implied warranties of merchantability and fitness run from a manufacturer to a remote purchaser, not in privity with the manufacturer,...