Nassau Roofing & Sheet Metal Co., Inc. v. Celotex Corp.

• Decision Date: 14 February 1980
• Citation: 424 N.Y.S.2d 786,74 A.D.2d 679
• Parties: , 28 UCC Rep.Serv. 408 NASSAU ROOFING & SHEET METAL CO., INC., Plaintiff, v. CELOTEX CORPORATION, Appellant, and Facilities Development Corporation, formerly Health and Mental Hygiene Facilities Improvement Corporation, et al., Respondents, and Lord Electric Company, Inc., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 786

424 N.Y.S.2d 786

74 A.D.2d 679, 28 UCC Rep.Serv. 408

NASSAU ROOFING & SHEET METAL CO., INC., Plaintiff, v. CELOTEX CORPORATION, Appellant, and Facilities Development Corporation, formerly Health and

Mental Hygiene Facilities Improvement Corporation,

et al., Respondents,

and

Lord Electric Company, Inc., Defendant.

Supreme Court, Appellate Division, Third Department.

Feb. 14, 1980.

Tunstead & Schechter, New York City (Michael S. Torre, New York City, of counsel), for appellant.

Robert Abrams, Atty. Gen. (George M. Thorpe, Asst. Atty. Gen., of counsel), for respondent Facilities Development Corp.

George S. Lettko, Troy, for respondent D & F Masons, Inc.

Before MAHONEY, P. J., and KANE, MAIN, MIKOLL and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered June 14, 1979 in Albany County, which denied a motion of defendant Celotex Corporation to dismiss the cross claims of defendant Facilities Development Corporation.

The underlying action herein arose out of roofing, waterproofing and sheetmetal work performed by plaintiff Nassau Roofing & Sheet Metal Company, Inc. (Nassau) for defendant Facilities Development Corporation (FDC) at Lincoln Hospital in the Bronx, New York. Defendant Celotex Corporation (Celotex) was the manufacturer of the polyurethane roofing insulation used on the project, and the insulation was purchased from Celotex by Strober Brothers, Inc. on behalf of Nassau, with the last delivery being made by March of 1974. Thereafter, defects in the work performed on the project became evident in November of 1974, with bubbles and other defects being discovered on various roofs installed by Nassau at the site. On July 10, 1978 Nassau commenced the present action against several defendants, including FDC and Celotex. In its complaint Nassau sought, Inter alia, a declaratory judgment as to its rights and those of FDC "with regard to the removal and replacement of the roofs at Lincoln Hospital" and also, in anticipation of a counterclaim by FDC, a ruling that Celotex would be liable if Nassau were found liable to FDC. It further alleged that Celotex had breached its warranty that the insulation was suitable for installation in the roofs at Lincoln Hospital. For its part in its answer, FDC, Inter alia, cross-claimed against Celotex and, as a first cross claim, alleged that Celotex had breached its warranty to FDC that the insulation was fit to use in connection with the installation of the roofs. As a second cross claim, FDC sought indemnification or contribution from Celotex, if FDC were ultimately found liable to Nassau, based upon Celotex's alleged breach of warranties and representations which it had given FDC.

Subsequently, on September 6, 1978, Celotex moved, pursuant to CPLR 3211, to dismiss Nassau's complaint on various grounds, and its motion was denied by order of the Supreme Court at Special Term (Pitt, J.), entered November 20, 1978 in Albany County. This court later affirmed Special Term's order (Nassau Roofing & Sheet Metal Co., Inc. v. Celotex Corporation, 70 A.D.2d 395, 421 N.Y.S.2d 676 (1979)), and while that appeal was pending, Celotex additionally moved, pursuant to CPLR 3211, to dismiss the cross claims of FDC. Once again its motion to dismiss was denied by Special Term and this appeal has ensued.

Initially, we cannot agree with FDC that the instant motion to dismiss is barred by the single motion rule of CPLR 3211 (subd. (e)). While that rule was designed "to spare the court's motion calendars from being burdened * * * " and "to protect the pleader from being harassed by repeated CPLR 3211(a) motions * * * " (Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 3211:55, p. 59), it is inapplicable here, and the two motions to dismiss should be permitted in this case because two different parties in two separate pleadings are alleging distinct causes of action against Celotex. Clearly, this is not an instance where Celotex failed to state one of its grounds for dismissal on the first motion and is attempting to state it by way of a second motion, and under the circumstances presented, it should be allowed one CPLR 3211 motion to dismiss for each pleading.

...