Rosen v. Watermill Development Corp., 2002-10463.
| Decision Date | 10 November 2003 |
| Docket Number | 2002-10463. |
| Citation | 1 A.D.3d 424,2003 NY Slip Op 18219,768 N.Y.S.2d 474 |
| Parties | LESLIE B. ROSEN et al., Respondents, v. WATERMILL DEVELOPMENT CORP. et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is modified by (1) deleting the provisions thereof denying those branches of the motion which were to dismiss the ninth and tenth causes of action insofar as asserted against the defendants Watermill Development Corp. and Gordon Kessler and substituting therefor provisions granting those branches of the motion, (2) deleting the provisions thereof denying that branch of the motion which was to dismiss the eighth cause of action insofar as asserted against the defendant Gordon Kessler and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The Supreme Court properly denied those branches of the defendants' motion which were to dismiss the first through fifth causes of action alleging breach of implied warranty. It is true, as the defendants contend, that the complaint must allege that before the commencement of the action, and within 30 days of the expiration period of the warranty, written notice of the claims was provided to them, and that the failure to allege compliance with this statutory condition precedent (see General Business Law § 777-a [4] [a]) is fatal to a cause of action to recover damages for breach of implied warranty (see Taggart v Martano, 282 AD2d 521 [2001]; see also Pinkus v V.F. Bldrs., 270 AD2d 470 [2000]). However, the defendants incorrectly contend that the complaint failed to meet this requirement.
On a motion to dismiss, "the complaint must be construed in the light most favorable to the plaintiff and all factual allegations must be accepted as true" (Gruen v County of Suffolk, 187 AD2d 560, 562 [1992]). In paragraph 50 of the verified complaint in this case, the plaintiffs alleged that the "defendants failed to respond to plaintiffs' written and oral complaints regarding the numerous instances of defective workmanship, defective materials, defective design, and defective installation and have refused to repair, replace, or restore same." The alleged written complaints were timely made since they predated the verified complaint, which was dated long before the expiration of...
To continue reading
Request your trial
-
Coccia v. Liotti
...relates to a breach of contract’ ” ( Biancone v. Bossi, 24 A.D.3d 582, 583, 806 N.Y.S.2d 694, quoting Rosen v. Watermill Dev. Corp., 1 A.D.3d 424, 426, 768 N.Y.S.2d 474). Further, a representation of opinion or a prediction of something which is hoped or expected to occur in the future does......
-
Commander Terminals, LLC v. Commander Oil Corp.
...fraud relates to a breach of contract ( see Biancone v. Bossi, 24 A.D.3d 582, 583, 806 N.Y.S.2d 694; Rosen v. Watermill Dev. Corp., 1 A.D.3d 424, 426, 768 N.Y.S.2d 474). Specifically, the misrepresentations alleged by the plaintiffs were not collateral to the provision of the employment agr......
-
Furino v. O'Sullivan
...required by General Business Law § 777–a(4)(a) (see Link v. Sarcona, 94 A.D.3d 823, 824, 941 N.Y.S.2d 849 ; Rosen v. Watermill Dev. Corp., 1 A.D.3d 424, 425, 768 N.Y.S.2d 474 ). Further, the plaintiffs established that they afforded the defendant a "reasonable opportunity to inspect, test a......
-
Bennett v. Hucke
...prima facie, that Percoco was not liable in his individual capacity for any such corporate obligation ( see Rosen v. Watermill Dev. Corp., 1 A.D.3d 424, 425, 768 N.Y.S.2d 474; Namrod Constr. Co. v. F.V.B. Contr. Corp., 116 A.D.2d 556, 497 N.Y.S.2d 411). In opposition, the appellant [16 N.Y.......