Queensbury Union Free School Dist. v. Jim Walter Corp.

• Decision Date: 20 October 1977
• Citation: 398 N.Y.S.2d 832,91 Misc.2d 804
• Court: New York Supreme Court
• Parties: QUEENSBURY UNION FREE SCHOOL DISTRICT, Plaintiff, v. JIM WALTER CORPORATION, Celotex Corporation, Aetna Casualty & Surety Company, Sweet Associates, Inc., Monahan & Loughlin, Inc., David McFee, d/b/a Schuyler Construction Company, and Crandell Associates, Architects, Defendants.

Page 832

398 N.Y.S.2d 832

91 Misc.2d 804

QUEENSBURY UNION FREE SCHOOL DISTRICT, Plaintiff, v. JIM WALTER CORPORATION, Celotex Corporation, Aetna Casualty & Surety Company, Sweet Associates, Inc., Monahan &amp Loughlin, Inc., David McFee, d/b/a Schuyler Construction Company, and Crandell Associates, Architects, Defendants.

Supreme Court, Warren County.

Oct. 20, 1977.

Caffry, Pontiff, Stewart, Rhodes & Judge, Glens Falls, for plaintiff (J. Lawrence Paltrowitz, Glens Falls, of counsel).

Donohue, Bohl, Clayton & Komar, P. C., Albany, for defendant Crandell Associates Architects (Frank T. Mahady, Albany, of counsel).

J. RAYMOND AMYOT, Justice.

In 1966 the plaintiff, Queensbury Union Free School District, by written contract, engaged the defendant, Crandell Associates, Architects "to perform architectural services with regard to the planning and construction" of an elementary school building.

The standard American Institute of Architects (AIA) printed form contract by which the architects were employed provided that they agreed "to provide professional services." The resolution of the Board of Education which authorized employment of the architects recites that the services to be performed by the architects include preparation of schematic plans, studies, specifications, drawings and "such other services usually performed to the final completion of the building."

The architects prepared the plans and specifications for the project. Based on those designs the building was erected and occupied by the School District.

In April of 1975 the School District "experienced considerable leaking" in the roof of the building and for the damage resulting therefrom the action herein was commenced in January of 1977 against the general contractor, the roofing contractor, the manufacturer of the roof, the insurance company which issued a twenty-year bond on the roof, and the architects.

The only causes of action alleged against the architects are in strict products liability and breach of warranty. Without serving an answer, the defendant Crandell Associates, Architec now moves pursuant to CPLR 3211 (subd. (a) pars. (5) and (7)) to dismiss the complaint as to it on the grounds that the action is barred by the applicable statute of limitations and that the complaint fails to state a cause of action.

Absent a guarantee of specific results, those engaged in the professions are held only to the standard generally followed in their particular profession and are required only to use due care in the performance of the professional services rendered (Carr v. Lipshie, 8 A.D.2d 330, 187 N.Y.S.2d 564, affd. 9 N.Y.2d 983, 218 N.Y.S.2d 62, 176 N.E.2d 512; Major v. Leary, 241 App.Div. 606, 268 N.Y.S. 413). They may be held in malpractice for the negligent performance of their professional services but in this state no cause of action is known to the law against an architect for a breach of implied warranty (Sears Roebuck & Co. v. Enco Assoc., 83 Misc.2d 552, 557-558, 370 N.Y.S.2d 338, 343-344, affd. 54 A.D.2d 13, 385 N.Y.S.2d 613, mot. for. lv. to app. granted 40 N.Y.2d 806, 389 N.Y.S.2d 1026, 357 N.E.2d 1024 ^*; see Milau Associates, Inc. v. North Avenue Development Corp., 56 A.D.2d 587, 588, 391 N.Y.S.2d 628, 629).

As was pointed out in Schenectady Steel Co., Inc. v. Trimpoli Const., 43 A.D.2d 234, 350 N.Y.S.2d 920, aff. 34 N.Y.2d 939, 359 N.Y.S.2d 560, 316 N.E.2d 875, the Uniform Commercial Code is not here applicable since the architect's contract with the plaintiff was for professional services and did not involve the sale of goods. The warranties created by that legislation do not arise in plaintiff's favor. (Aegis Productions, Inc. v. Arriflex Corporation of America, 25 A.D.2d 639, 268 N.Y.S.2d 185).

The complaint in question alleges only that the architect "warranted that said architectural services and approval of said roof was of good and merchantable quality" (emphasis added). If in fact the architectural services, including the approval of the roof, were not within the standard generally followed in the profession, the plaintiff may have had a cause of action in malpractice, but other than the bald, unsupported allegations of the complaint, there is no showing by affidavit, oral argument or otherwise that the architects included in their contract a specific guarantee or warranty that the roof was of good and merchantable quality.

The complaint fails to allege a cause of action based on warranty. None exists with regard to architectural services. The defendant's motion addressed to the nineteenth cause of action, which attempts to allege breach of warranty, is granted.

The second branch of the motion to dismiss is addressed to the eighteenth cause of action which alleges that the architects are responsible in damages on the theory of strict products liability. No New York appellate authority dispositive of this contention has been submitted and none has been discovered by the court. It is necessary, therefore, to examine the nature of the cause of action and its applicability to the existing facts. Where appropriate, the court may be guided by decisions of the courts in our sister states dealing with similar problems.

The rule of strict products liability in New York was first enunciated in Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622. It was there held that, under given conditions, the manufacturer of a defective product is liable to any person injured or damaged in consequence of the defect without proof of negligence. Subsequent cases have extended that liability to suppliers of the defective product (Velez v. Craine & Clark Lbr. Corp., 33 N.Y.2d 117, 350 N.Y.S.2d 617, 305 N.E.2d 750) and to vendors Mead v. Warner Pruyn, 57 A.D.2d 340, 394 N.Y.S.2d 483; but cf. Bichler v. Willing, 58 A.D.2d 331, 397 N.Y.S.2d 57).

It is clear from the Codling court's review of the "historical catalogue of products liability cases" that the theory there articulated, although independent, had its roots in warranty. This genealogy is evident in the cases which followed Codling (see Velez v. Craine & Clark Lbr. Corp., supra; Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395, 373 N.Y.S.2d 39, 335 N.E.2d 275, Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571). Recently in Potsdam Welding and Machine Co., Inc. v. Neptune Microfloc, Inc., 57 A.D.2d 993, 995, 394 N.Y.S.2d 744, 746, the Third Department recognized the relationship between warranty and strict products liability and held:

"Plaintiff's third cause of action, for breach of implied warranty, based upon the same facts as the cause of action for strict products liability which we have sustained, is redundant."

Similarly, in Ribley v. Harsco Corp., 57 A.D.2d 228, 230, 394 N.Y.S.2d 740, 741, the Third Department held:

"Whatever strict products liability might be when considering the question of negligence, it rests on an ultimate basis distinct from negligence. The cause of action arises not essentially from a lack of due concern by a defendant for others, but instead from a failure to so construct a particular device as not to cause injury by defective construction (design or manufacture) and then putting the defective device into the possession of others for a profit motive * * *."

Warranty being the basis for the doctrine of strict products liability, it follows that the cause of action will exist only where there would have been warranty implied (see Dickey v. Lockport Prestress, Inc., 52 A.D.2d 1075, 384 N.Y.S.2d 609), but as discussed above, there is no implied warranty in connection with professional services. There is no cause of action in strict products liability for damages allegedly resulting from the negligent performance of...