Waful v. Contractors Syracuse Sales Co.
| Decision Date | 23 September 1961 |
| Citation | 219 N.Y.S.2d 1004,31 Misc.2d 77 |
| Parties | Claude WAFUL, Plaintiff, v. CONTRACTORS SYRACUSE SALES CO., Inc., Hecht Construction Corporation and Wincent Hecht, Defendants. Action 1. Wincent G. HECHT, Plaintiff, v. CONTRACTORS SYRACUSE SALES CO., Inc., Defendant (two cases). Actions 2 and 5. Francis B. ZELESNIK, Plaintiff, v. CONTRACTORS SYRACUSE SALES CO., Inc., Defendant (two cases). Actions 3 and 6. Claude WAFUL, Plaintiff, v. CONTRACTORS SYRACUSE SALES CO., Inc., Defendant. Action 4. |
| Court | New York Supreme Court |
Costello, Cooney & Fearon, Syracuse, John M. Henley, Syracuse, of counsel, for plaintiff-respondent, Waful.
Melvin & Melvin, Syracuse, Edward D. Brown, Jr., Syracuse, of counsel, for plaintiffs-respondents, Wincent G. Hecht and Francis B. Zelesnik.
Bond, Schoeneck & King, Syracuse, John C. Kinney, Syracuse, of counsel, for defendant-petitioner, Contractors Syracuse Sales Co., Inc.
Oot, Greene, Setright & Moore, Syracuse, for defendants, Hecht Const. Corp. and Wincent G. Hecht.
The defendant Contractors Syracuse Sales moves to dismiss the complaints in Actions 4, 5 and 6 for insufficiency and as being barred by the statute of limitations. Actions 4, 5 and 6 attempt to state complaints in breach of warranty. The moving defendant has already been sued in negligence for the same accident by the same plaintiffs in Actions 1, 2 and 3. It is patent from their wording that if the complaints in Actions 4, 5 and 6 do not state causes of action in breach of warranty they are then simply reiterations of the complaints in negligence which have preceded them. As such they would be subject to dismissal for not having been commenced within three years, if not for redundancy.
The three plaintiffs were injured using a piece of construction equipment of which the moving defendant was the lessor. The lessee was Consolidated Gas and Service Inc. It is alleged that the lessor knew that the equipment was to be used by the employees of Consolidated Gas and Service and also the employees of Northeastern Electrical Construction Company. One of the plaintiffs was an employee of Consolidated Gas and Service. One was an employee of Northeastern Electrical Construction Company. The third plaintiff alleges that he was employed by both Consolidated Gas and Service and Northeastern Electrical Construction and that he is, in fact, president of both corporations and that they are simply his alter egos.
The moving defendant attacks the warranty complaints by asserting the absence of a privity of contract. All of the plaintiffs counter that a logical extension of the recent holding in Greenberg v. Lorenz, 9 N.Y.2d 195, 213 N.Y.S.2d 39, 173 N.E.2d 773, eliminates the necessity of privity of contract. In addition, the plaintiff corporation president claims privity on the alter ego theory.
The claim of privity cannot be upheld on the alter ego theory any more than it could on an employer-employee theory. Historically the claim may benefit only the immediate contracting parties, here, the moving defendant and Consolidated Gas and Service--unless, of course, the controlling principle has been changed by the current of legal decisions culminating in the Greenberg case.
Formerly, only the buyer or lessee, himself, was entitled to claim the privity of contract necessary to assert breach of warranty against the seller or lessor (Chysky v. Drake Bros. Co., 235 N.Y. 468, 139 N.E. 576, 27 A.L.R. 1533). Then, as is set forth in Greenberg, 9 N.Y.2d at pages 198, 199, 213 N.Y.S.2d at pages 40, 41, 173 N.E.2d at pages 774, 775, came a series of decisions liberalizing this principle. Ryan v. Progressive Grocery Stores, 255 N.Y. 388, 175 N.E. 105, 74 A.L.R. 339, permitted a damaged husband to sue where his wife bought food that injured him and then, in Gimenez v. Great Atlantic & Pacific Tea Co., 264 N.Y. 390, 191 N.E. 27, the wife was permitted to sue on her own behalf. Mouren v. Great Atlantic & Pacific Tea Co., 1 N.Y.2d 884, 154 N.Y.S.2d 642, 136 N.E.2d 715, next allowed recovery for both husband and wife. In the meantime, Bowman v. Great Atlantic & Pacific Tea Co., 308 N.Y. 780, 125 N.E.2d 165, held that a sister who purchased food did so as an agent of the other sister where both lived...
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