Miller v. General Motors Corp.

• Decision Date: 24 January 1984
• Citation: 471 N.Y.S.2d 280,99 A.D.2d 454
• Parties: Lawrence MILLER, et al., Plaintiffs-Respondents, v. GENERAL MOTORS CORPORATION, Defendant-Appellant, and Potamkin Cadillac Corp., etc., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 280

471 N.Y.S.2d 280

99 A.D.2d 454

Lawrence MILLER, et al., Plaintiffs-Respondents, v. GENERAL MOTORS CORPORATION, Defendant-Appellant and Potamkin Cadillac Corp., etc., Defendant.

Supreme Court, Appellate Division First Department.

Jan. 24, 1984.

I.M. Berg, New York City, for plaintiffs-respondents.

B.D. Parker, Jr., New York City, for defendant-appellant.

Before KUPFERMAN, J.P., and SANDLER, SULLIVAN, ROSS and LYNCH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered February 18, 1983, which denied defendant General Motors' motion pursuant to CPLR 3211(a)7 and 3016(b) to dismiss the second through the seventh causes of action of plaintiffs' complaint and which granted plaintiffs' cross-motion to amend the second through the seventh causes of action of the complaint is modified on the law to dismiss the second cause of action of the amended complaint and to strike paragraph 62 of the sixth cause of action thereof and is otherwise affirmed, without costs or disbursements.

Each of the plaintiffs purchased a new 1981 Cadillac with a V8-6-4 engine from the defendant dealer, Potamkin Cadillac Corp. The cars were manufactured by defendant General Motors. The original complaint, in this uncertified class action, alleges various engine defects. Potamkin answered. General Motors did not, moving instead to dismiss, Potamkin joining in the motion. Plaintiffs opposed and moved to serve an exhibited amended complaint which sought to add to the original the allegation that Cadillac dealers were agents of General Motors for warranty repairs and other related purposes. Otherwise, the amended complaint pleaded the same causes of action as the original and, like the original, made no claims for personal injury but sought recovery only of alleged economic loss and punitive damages.

Special Term correctly found that plaintiffs could amend their complaint as of right against General Motors because it had not answered (see CPLR 3025[a] ). Leave to amend was found necessary as to Potamkin which had answered. Leave was granted which Potamkin has not appealed. The court then addressed the motion as one directed against the amended complaint, and it dismissed the first cause of action. The plaintiffs have not appealed. The court denied dismissal of the remaining causes of action.

The second cause of action of the amended complaint alleges a breach of an implied warranty of merchantability. Special Term sustained it against General Motors, holding that [p]rivity with the intended user is not necessary under a manufacturers [sic ] implied warranty of fitness," citing Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81. Goldberg, unlike the present action, was a personal injury case, but, be that as it may, its holding has since been defined and refined to the point where the Court of Appeals has stated in Martin v. Dierck Equipment Co., 43 N.Y.2d 583, 589, 590, 403 N.Y.S.2d 185, 374 N.E.2d 97, that "a plaintiff who is not in privity with the seller of the product which is alleged to have caused his injury possesses a cause of action in negligence or strict products liability as opposed to what has often been incorrectly labeled breach of warranty". Where, as here, the suit has been one to recover for economic loss, it has consistently been held that a cause of action does not lie against a remote manufacturer for the breach of an implied warranty (Arthur Jaffee Associates v. Bilsco Auto Service, 89 A.D.2d 785, 453 N.Y.S.2d 501, aff'd 58 N.Y.2d 993, 461 N.Y.S.2d 1007, 448 N.E.2d 792; see also: Hole v. General Motors Corp., 83 A.D.2d 715, 442 N.Y.S.2d 638; Mendelson v. General Motors Corp., 105 Misc.2d 346, 432 N.Y.S.2d 132, aff'd 81 A.D.2d 831, 441 N.Y.S.2d 410).

The second cause of action is not saved by plaintiffs' amendment alleging that Potamkin was an agent of General Motors. The agency alleged was only for "warranty repairs and other related purposes", not for the sale of the automobiles which is the only relevant point on a breach of an implied warranty claim.

Finding no implied...