Opinion
Index No. EF2018-65546
04-11-2022
Carolyn FISCHER and William Fischer, Plaintiffs, v. Gary ZERVAS and Adirondack Mountain Ridge Estates d/b/a Adirondocks, LLC, Defendants. Gary Zervas and Adirondack Mountain Ridge Estates d/b/a Adirondocks, LLC, Third-Party Plaintiffs, v. Allerdice Building Supply, Inc., Third-Party Defendant.
FitzGerald Morris Baker Firth, P.C., Glens Falls (Joshua D. Lindy of counsel), for plaintiffs. Maguire Cardona, PC, Albany (Anthony V. Cardona, Jr. of counsel), for defendants and third-party plaintiffs. Mastropietro Law Group, PLLC, Saratoga Springs (John P. Mastropietro of counsel), for third-party defendant.
FitzGerald Morris Baker Firth, P.C., Glens Falls (Joshua D. Lindy of counsel), for plaintiffs.
Maguire Cardona, PC, Albany (Anthony V. Cardona, Jr. of counsel), for defendants and third-party plaintiffs.
Mastropietro Law Group, PLLC, Saratoga Springs (John P. Mastropietro of counsel), for third-party defendant.
Robert J. Muller, J.
By Decision and Order dated September 22, 2021 ( 73 Misc 3d 1207[A], 2021 NY Slip Op 50964[U] [Sup Ct, Warren County 2021] ), this Court denied the motion for summary judgment of third-party defendant Allerdice Building Supply, Inc. (hereinafter Allerdice) finding questions of fact as to whether Allerdice breached the implied warranty of merchantability. Allerdice now moves for leave to reargue.
The Court further found the implied warranty of fitness for a particular purpose inapplicable as a matter of law and granted the motion in this regard.
A motion for leave to reargue should be granted where "the court has overlooked significant facts or misapplied the law in its original decision" ( Matter of Town of Poestenkill v New York State Dept. of Envtl. Conservation , 229 AD2d 650, 650 [1996] ; see CPLR 2221 [d] ; Matter of Ellsworth v Town of Malta , 16 AD3d 948, 949 [2005] ). Here, defendant contends that the Court overlooked significant facts. Specifically, defendant takes issue with the finding "that Allerdice supplied the hidden fasteners for the project, and grooved the decking for these hidden fasteners before delivery" ( 73 Misc 3d 1207[A], at *3 [emphasis added]), as well as the finding that because "Allerdice.... grooved the Red Balau decking for hidden fasteners prior to delivery, the argument can ... be made that the product — as delivered — was not reasonably fit for its intended purpose" (id. ).
According to Allerdice, these findings are "conclusively refuted" by the record, which establishes that Allerdice did not groove the decking. Rather, defendant/third-party plaintiff Adirondack Mountain Ridge Estates d/b/a Adirondocks, LLC (hereinafter Adirondocks) ordered the decking material with grooving and Allerdice placed the order—with the supplier then cutting the grooves. Allerdice contends that, because it neither recommended nor cut the grooves, it did not breach the implied warranty of merchantability as a matter of law.
As set forth in the underlying Decision and Order, " ‘[t]he implied warranty of merchantability is a guarantee by the seller that its goods are fit for the intended purpose for which they are used and that they will pass in the trade without objection’ " ( Wojcik v Empire Forklift, Inc. , 14 AD3d 63, 66 [2004], quoting Saratoga Spa & Bath v Beeche Sys. Corp. , 230 AD2d at 330 [citation omitted]). "To establish that a product is defective for purposes of a breach of implied warranty of merchantability claim, a plaintiff must show that the product was not ‘reasonably fit for [its] intended purpose’ " ( Wojcik v Empire Forklift, Inc. , 14 AD3d at 66, quoting Saratoga Spa & Bath v Beeche Sys. Corp. , 230 AD2d at 330 ; see UCC 2—314 [2] [c] ), with this inquiry " ‘focus[ing] on the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners’ " ( Wojcik v Empire Forklift, Inc. , 14 AD3d at 66 ; Denny v Ford Motor Co. , 87 NY2d 248, 258-259 [1995] ).
The Court recognizes that the supplier—and not Allerdice—cut the grooves in the decking material. This notwithstanding, Allerdice specifically requested that the decking be grooved for purposes of the sale. Donald Cox—the sales manager for Allerdice who handled the order—testified as follows during his deposition:
"Q: Do you recall when you contacted the supplier did you have to specifically request that the decking be grooved?
"A: Yes."
To the extent that the grooves were cut by the supplier at Allerdice's direction, the factual findings to which it now objects remain largely unchanged. Moreover, irrespective of who cut the grooves in the decking material, it is undisputed that Allerdice never provided Adirondocks with a copy of Nelson International's Installation Essentials pamphlet nor did it advise that Nelson International was the manufacturer of the decking. While Allerdice contends that it "has never provided the manufacturer's installation guidelines in any prior transaction between the parties[, and] this course of dealing is dispositive of the case" (see UCC 2-316 [3] [c] ), such argument was not raised by Allerdice in its original motion and a motion for leave to reargue "is not designed to afford an unsuccessful party successive opportunities.... to present arguments different from those originally asserted" (Matter of Mayer v National Arts Club , 192 AD2d 863, 865 [1993] ; see Pryor v Commonwealth Land Tit. Ins. Co. , 17 AD3d 434, 436 [2005] ). It must also be noted that the record fails to include sufficient information with respect to the parties’ course of dealing — likely because the argument was not previously raised.
Under the circumstances, Allerdice's motion for leave to reargue is denied.
Therefore, having considered NYSCEF documents 82 through 96 and 98 through 100, it is hereby
ORDERED that third-party defendant's motion for leave to reargue is denied.
The original of this Decision and Order has been e-filed by the Court. Counsel for defendants/third-party plaintiffs is hereby directed to serve a copy of the Decision and Order with notice of entry in accordance with CPLR 5513.