Wegorzewski v. Macrose Lumber & Trim Co.

• Decision Date: 15 June 1972
• Citation: 333 N.Y.S.2d 638,70 Misc.2d 192
• Parties: Stanislaw WEGORZEWSKI, Plaintiff, v. MACROSE LUMBER & TRIM CO. Inc., and Macrose Industries Inc., Defendants. WILMOD COMPANY, Inc., Defendant-Third-Party Plaintiff, v. The NISSHO AMERICAN CORP., Third-Party Defendant.
• Court: New York Supreme Court

Page 638

333 N.Y.S.2d 638

70 Misc.2d 192

Stanislaw WEGORZEWSKI, Plaintiff, v. MACROSE LUMBER & TRIM CO. Inc., and Macrose Industries Inc.,

Defendants.

WILMOD COMPANY, Inc., Defendant-Third-Party Plaintiff, v. The NISSHO AMERICAN CORP., Third-Party Defendant.

Supreme Court, Special Term, Nassau County, Part I.

June 15, 1972.

[70 Misc.2d 193] Samuel G. Rabinor, Jamaica, for plaintiff.

Kamerman & Kamerman, New York City, for third-party defendant.

Bower & Gardner, New York City, for defendant-third-party plaintiff.

MEMORANDUM

DANIEL G. ALBERT, Justice.

The third-party defendant moves to dismiss the complaint against it on the ground that the cause of action stated therein is barred by the applicable six-year statute of limitations for breach of warranty claims, and the motion is granted in all respects.

The original action, commenced in 1967, was based upon an injury which the plaintiff suffered on January 24, 1962 because of an allegedly defective nail, manufactured by a Japanese company, sold to the movant herein, distributed to the third-party plaintiff wholesaler and ultimately sold to plaintiff by the retailer, the last three of which were made defendants in the original action. The third-party plaintiff served a cross-claim against the third-party defendant in the original action, but such service was ineffective to acquire jurisdiction over the movant because it had not answered or appeared and the cross-claim was not served as a summons in accordance with the provisions of CPLR 3012(a) and Article 3 thereof. Ultimately the complaint against the distributor, the third-party defendant herein, was dismissed, and consequently it was properly dropped as a party to the action since no claims were outstanding against it therein.

'(W)hile an answer containing a cross-claim is served on the plaintiff and on a co-defendant who has appeared pursuant to CPLR 2103, whether or not the cross-claim is against him, the answer must be served under Article 3 (as a summons) on a co-defendant against whom the cross-claim is asserted if he has not appeared. . . .' 3 Weinstein Korn & Miller, N.Y.Civ.Prac. 3012.05, p. 30--125.

The third-party plaintiff herein recognized this principle when, in response to the third-party defendant's return of the original cross-claim on October 23, 1967, the third-party plaintiff acknowledged in writing that, 'Of course, if you have not yet served an answer in this particular action, there would be nothing for you to do with respect to answering the cross-claim.' (Ex. B to Reply Affidavit, letter of Oct. 30, 1967.) In reply thereto again returning the cross-claim the moving party asserted that 'if the motion (to dismiss) be granted, Nissho would be out of the action.' That conclusion was a proper one; the motion to dismiss was later made and granted, and Nissho, the moving party here, was 'out of the action.'

Since there is no valid cross-claim pending against Nissho, I must now determine whether the third-party complaint, served on the movant on April 28, 1972 alleging breach of warranty in regard to the sale of the nail in question prior to January 24, 1962, is barred by the statute of limitations or is in actuality a claim for indemnity which has not yet accrued, but which the third-party plaintiff may impose by virtue of CPLR 1007.

Clearly, more than ten years have elapsed since the sale and the resulting accident in question and if the claim asserted herein is one for breach of warranty, it is barred by the applicable six-year statute of limitations (CPLR 213).

The third-party complaint states the nature of the transactions between the third-party plaintiff, the U.S. wholesaler, and the third-party defendant, the Japanese-American distributor, and concludes that the latter 'will be wholely (sic) liable over to this defendant and third-party plaintiff Wilmod for the amount of any verdict or judgment which may be recovered by the plaintiff against the defendant third-party defendant (sic) Wilmod in this action.' (Complaint 13.) While this resembles a claim for indemnity, the complaint must be further examined in order to ascertain the true nature of the cause of action stated. It reads in pertinent part as follows:

'6. That heretofore, the plaintiff began an action in this court to recover damages for personal injuries alleged to have been sustained by the plaintiff as set forth in the complaint, to the contents of which this defendant third-party plaintiff begs leave to refer to upon the trial of this action as if the same was set forth more particularly at length.

'7. The plaintiff alleges in substance in the complaint that prior to the 24th day of January, 1962, he purchased certain nails from the defendant MACROSE LUMBER & TRIM CO., INC. and/or defendant MACROSE INDUSTRIES INC. That while using said nails on the 24th day of January, 1962, he was caused to sustain personal injuries. It is further alleged in the complaint that the NISSHO AMERICAN CORP. had sold said nails to WILMOD COMPANY, INC., who in turn sold them to defendant MACROSE LUMBER & TRIM CO., INC. and/or MACROSE INDUSTRIES INC., who in turn sold them to the plaintiff. The plaintiff further alleges in his complaint that the injuries and damages he claimed to have sustained were due to an alleged breach of expressed and/or implied warranties.

'8. That prior to the 24th day of January, 1962, the third-party defendant NISSHO by its agents, servants or employees sold and delivered a certain quantity of masonry nails--hardened steel and that said third-party defendant, its agents, servants or employees had notice of the use for which said nails were intended.

'9. That at all times hereinafter mentioned, the third-party defendant NISSHO its agents, servants or employees knew or should have known that the masonry nails sold and delivered to defendant third-party plaintiff WILMOD were for the purpose of resale to the general public.

'10. That the nails referred to in the plaintiff's complaint were from the same group as those which were sold to the defendant third-party plaintiff WILMOD by the third-party defendant NISSHO and said nails were in exactly the same state and condition as that sold by the third-party defendant NISSHO.

'11. That at the time of the sale and delivery of the aforementioned masonry nails--hardened steel to the defendant third-party plaintiff WILMOD, The said third-party defendant, its agents, servants or employees warranted expressly or impliedly that the said nails were of good and merchantable quality suitable and fit for the purpose and use in concrete intended.

'12. That if any verdict or judgment is recovered in this action by the plaintiff against the defendant and third-party plaintiff NISSHO (sic) that said verdict or judgment will have been brought about Solely by reason of a breach of express or implied warranties by the third-party defendant, NISSHO, in that said nails were not of good and merchantable quality and not suitable and fit for the purpose and use in concrete intended and through no breach of warranty express or implied by the defendant and third-party plaintiff WILMOD.' (Emphasis added.)

A scrutiny of the language used reveals that the single cause of action claimed is based upon breach of warranty: if any verdict is recovered by plaintiff against the defendant it 'will have been brought about solely by reason of a breach of express or implied warranties by the third-party defendant, NISSHO, in that said nails were not of good and merchantable quality and not suitable and fit for the purpose and use in concrete intended.' Indeed, a cause of action for breach of warranty could not have been pleaded more articulately. It does not, however, state a claim for indemnity, since one who has breached a warranty does...