Welding Products of Ga. v. Kuniansky, 46874

• Decision Date: 22 February 1972
• Docket Number: No. 2,No. 46874,46874,2
• Citation: 188 S.E.2d 278,125 Ga.App. 537
• Parties: WELDING PRODUCTS OF GEORGIA v. Max KUNIANSKY et al
• Court: Georgia Court of Appeals

Page 278

188 S.E.2d 278

125 Ga.App. 537

WELDING PRODUCTS OF GEORGIA v. Max KUNIANSKY et al.

No. 46874.

Court of Appeals of Georgia, Division No. 2.

Feb. 22, 1972.

Peek, Whaley & Haldi, J. Robert Hardcastle, Atlanta, for appellant.

Shoob, McLain & Jessee, M. David Merritt, Atlanta, for appellees. Syllabus Opinion by the Court

CLARK, Judge.

This case is an appeal by a plaintiff subtenant who had sustained damage by collapse of a roof from a summary judgment granted to a general contractor who had constructed the building on land owned by him. Construction had been completed in 1966 after which the contractor-owner sold the property on August 1, 1966. The roof collapsed almost four years later on July 22, 1970.

The complaint names as defendants the general contractor-owner, the architect and his collaborator in the preparation of the plans and specifications, the roofer and the concern which placed the roof decking on the building, and the contractor who did the structural steel work for support of the roof. The contractor-owner is the sole defendant involved in this appeal.

The pertinent portion of the complaint alleges: 'The collapse of said roof was due to the negligent and improper construction of the building and the roof by the co-defendant, Max Kuniansky, M. K. Construction Corp., Tip Top Roofers, Inc., and R. F. Burton Co. and S. D. Mullins Co., Inc., as well as the negligent and improper design of said building, roof and supports of roof by defendants, Norman Jaffe and O. C. Floyd, and the failure of all defendants to exercise reasonable care in inspecting said building and roof as the same was being constructed.'

Defendant Kuniansky denied the material allegations of the complaint and moved for summary judgment supported by an affidavit in which he deposed that he, as a general contractor, had constructed the building in 1966 on his own land. He further deposed:

'(S)aid building was built in strict compliance to plans and specifications furnished by the defendant, Norman Jaffe, an architect employed by Air Reduction Company, Inc., who was to lease the premises from your affiant. When said building was completed, it was sold on August 1, 1966, by your affiant to Caroline Realty Investments, Inc. The lease with Air Reduction Company, Inc. being assigned to Caroline Realty Investments, Inc. That at no time has your affiant dealt with, had an agreement with, or entered into any relationship with the plaintiff herein . . . That your affiant was never aware of any defects in the construction of said building through August 1, 1966, the time said premises were sold to Caroline Investment, Inc. . . .' No evidence was offered by the plaintiff in opposition to this defendant's motion.

Under the law of this State, absent fraudulent concealment of known defects, a seller-builder...