Opinion
February 2, 1990
Appeal from the Supreme Court, Cayuga County, Contiguglia, J.
Present — Dillon, P.J., Denman, Green, Lawton and Davis, JJ.
Judgment unanimously affirmed with costs to defendant Westinghouse Electric Corporation. Memorandum: Plaintiff entered into contracts with defendant for the purchase of a VAR generator and its subsequent service. Those contracts provided that defendant's liability for any breach of contract would exclude claims for consequential damages. The VAR generator subsequently short-circuited and plaintiff commenced the present action for replacement of the generator and for consequential damages. Supreme Court, based on the parties' contractual provisions, dismissed plaintiff's claim for consequential damages. Plaintiff contends that the court erred because the limitation of liability was void pursuant to General Obligations Law §§ 5-322.1 and 5-323. We disagree. Plaintiff and defendant are sophisticated business entities that entered into contracts for the purchase and service of a piece of equipment. The contracts were governed by the UCC, which authorizes contracting parties to limit the remedies available upon breach by excluding claims for consequential damages (see, UCC 2-719). Further, parties are granted broad latitude to fashion their own remedies for breach of contract (see, Wilson Trading Corp. v David Ferguson, Ltd., 23 N.Y.2d 398, 401-403). Since the essence of the contracts is the sales and service of a piece of equipment, we conclude that the exculpatory clauses in the parties' contracts are not agreements which affect real property or the construction or maintenance of a building, structure, appurtenances or appliances within the meaning of General Obligations Law §§ 5-323 and 5-322.1 (see, Florence v Merchants Cent. Alarm Co., 51 N.Y.2d 793, 795; cf., Melodee Lane Lingerie Co. v American Dist. Tel. Co., 18 N.Y.2d 57, 68-70).
We find that the remaining contentions on appeal and cross appeal are without merit.