Opinion
2008-2149.
Decided March 18, 2010.
CRAIG R. FRITZSCH, ESQ., BINGHAMTON, NY, PLAINTIFFS.
LEVENE, GOULDIN THOMPSON, LLP, BY:LAUREN A. KILEY, ESQ., OF COUNSEL, BINGHAMTON, NY, DEFENDANT, ALLIED BUILDING PRODUCTS CO.
BOND, SCHOENECK KING, PLLC, BY: ADAM P. MASTROLEO, ESQ., OF COUNSEL, SYRACUSE, NY, DEFENDANT, BUILDING MATERIALS CORPORATION OF AMERICA.
This action arises out of the purchase and sale of 83 square of roofing shingles to plaintiffs, George Schambach and MaryJane Schambach, from defendant Allied Building Products Co. (hereinafter "Allied") and manufactured by defendant Building Materials Corp. of America, doing business as GAF Corp. (hereinafter "GAF").
This Decision Order addresses defendants' motions for an order granting summary judgment dismissing the complaint pursuant to CPLR § 3212.
Defendant GAF did not file a formal cross-motion. Nevertheless, this court has deemed defendant GAF to have so moved without the necessity of a formal cross-motion pursuant to CPLR § 3212 (b). Defendant GAF also moved to amend its Answer to add the affirmative defense of failure to comply with statute of frauds. The court granted GAF's motion from the bench during oral argument which was memorialized by way of a separate Order.
Plaintiffs, George Schambach and MaryJane Schambach, oppose the defense motions for summary judgment.
BACKGROUND
Defendant Allied is in the business of selling building materials and supplies with a branch office located in Syracuse, New York. Co-defendant GAF is in the business of manufacturing roofing shingles. Plaintiff George Schambach had discussions with Ralph Finizio, a GAF sales representative, regarding the purchase of roofing shingles for his personal residence. Mr. Finizio advised plaintiff that GAF did not accept direct customer orders and that he would have to place an order with a GAF distributer, namely Allied.
On March 8, 2006, plaintiff submitted an order through Allied for 83 square of shingles to be manufactured by GAF. Plaintiff paid in full a total of $7,885 for the roofing shingles on the same date.
Allied in turn placed the shingles order with GAF. On or about May 12, 2006, Allied received 73 of the 83 square of shingles ordered from GAF. Allied advised plaintiffs, orally and in writing, that the order was 10 square short. Plaintiffs accepted the order despite being told it was 10 square short. Defendants allege that plaintiffs began removing their old roof and installing new shingles even though they were aware that there were not enough shingles to cover the entire roof surface. Defendants further allege that plaintiffs did not remove all of the old roof and damages, if any, were caused by the condition of the remaining old roof in the first instance.
In any event, in November 2007, GAF agreed to procure a custom run for the remaining 10 square of shingles. In December 2007, the 10 remaining square of shingles were delivered to plaintiffs, but plaintiffs rejected the shipment alleging the colors did not match (Toth Affidavit, ¶¶ 20-22).
On August 1, 2008, this action was commenced upon the filing of the Summons and Complaint. On September 16, 2008, plaintiffs filed an Amended Summons and Complaint. On December 18, 2008, plaintiffs filed a Second Amended Summons and Complaint alleging four causes of action described as follows: (1) $66,000 for mold mitigation; (2) $71,000 for the replacement of the roof with matching shingles; (3) $38,000 for testing expenses and other repairs; and (4) $75,000 for intentional infliction of severe emotional distress. Defendant Allied interposed an answer containing a cross-claim against defendant GAF.
On February 9, 2009, plaintiffs obtained — improperly as this court later determined — a Default Judgment in the sum of $316,172.40 against defendant GAF. On March 20, 2009, this court signed an Order to Show Cause with Temporary Restraining Order prohibiting plaintiffs from distributing, delivering or in any way providing restraining notices to any of GAF's customers and vacating the restraining notices which plaintiffs had already served. By further Order dated April 8, 2009, this court vacated the Default Judgment, deemed any restraining notices served by plaintiffs in connection with said Judgment to be released and of no effect, and directed plaintiffs to accept GAF's Answer submitted February 5, 2009.
By separate Order also dated April 8, 2009, the court granted defendant Allied's motion for an Order of Preclusion providing plaintiffs 30 days within which to provide various discovery demands.
Thereafter, plaintiffs moved for summary judgment on the issue of liability. This court denied plaintiffs' motion by Order dated December 2, 2009.
Now, defendants seek summary judgment dismissing the complaint. Plaintiffs' limited response to this motion takes the form of an "Affirmation in Support" from plaintiff George Schambach and warrants a verbatim recitation:
George Schambach, plaintiff, in response to the motion of the defendant for summary judgment responds as follows:
1.Your affiant is the plaintiff.
2.The defendant's motion admits that the defendant failed to deliver the shingles that had been paid for by the plaintiff.
3.The basis of the defendant's motion is that even though defendant knew that they had not delivered the shingles bought and paid for by the plaintiff, the damages sustained by the plaintiff were not casually related to that breach of contract.
4.The proper response to the defendant's motion is to grant summary judgment on liability to the plaintiff and set a date for inquest for damages. At the inquest for damages, the Court can determine what damages are actually casually related to the breach of the plaintiff.
5.Respectfully, the motion of the defendant admits the contractual wrong and then asks the court to blame any damages on the actions of the plaintiff. Again, respectfully, the defendant has admitted its mistake and now should be held to the damages that are causally related.
6.[blank]
WHEREFORE, your affiant prays for an order denying defendant's motion for summary judgment, granting plaintiff summary judgment and setting the matter down for an inquest for damages, plus such other and further relief as the Court deems just in the premises [ sic].
(Plaintiff's "Affirmation in Support").
DISCUSSION
1. SPECIAL AND CONSEQUENTIAL DAMAGES
Plaintiff's first, second, and third causes of action seek damages for mold mitigation, replacement of the roof with matching shingles, and testing expenses and other repairs. Defendants allege these three causes of action should be dismissed as they improperly seek special and consequential damages which are prohibited under the terms of this contract, as well as under common law.
General damages are those which are the natural and probable consequence of the breach ( Kenford Co. v County of Erie, 73 NY2d 312, 319). Special damages are extraordinary in that they do not so directly flow from the breach and are recoverable only upon a showing that they were foreseeable and within the contemplation of the parties at the time the contract was made ( American List Corp. v U.S. News World Report, 75 NY2d 38, 42-43).
With respect to the contract between plaintiff and defendant Allied, the contract states, in pertinent part, as follows:
[I]T IS AGREED THAT SELLER'S LIABILITY FOR DAMAGES, WHETHER BASED ON SELLER'S NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE PARTICULAR SHIPMENT WITH RESPECT TO WHICH SUCH DAMAGES ARE CLAIMED AND SHALL NOT INCLUDE LIABILITY FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES.
(Contract, ¶ 1; emphases added).
Based upon this contract language alone, it is clear that these parties did not contemplate damages beyond the purchase price of the goods. However, plaintiffs' complaint does not seek damages for the purchase price of the original goods themselves or, for that matter, any alleged defect in the shingles, but rather is specifically expressed in terms of damages for mold mitigation, replacement costs, and testing expenses. In any event, the court notes that plaintiffs received 73 of the 83 square of shingles in the first shipment and then the remaining 10 square at a later time, although they were rejected. Plaintiffs' argument that the distinction between general damages and special and consequential damages is not applicable to a finding of liability is without merit (Plaintiff's Affirmation in Support, ¶ 4).
The court also finds that common law precludes recovery of special and consequential damages under these circumstances. Plaintiffs' recovery is limited to general damages which are the natural and probable consequence of the alleged breach ( Kenford Co., 73 NY2d at 319). There is no proof that the parties contemplated or could have foreseen damages such as mold mitigation, replacement of the roof with matching shingles, and testing expenses and other repairs. Moreover, as noted above, with respect to the shingles themselves, there is no proof that they were defective in any way or did not function properly — only that there was a slight variation in color.
As a separate and distinct basis for relief, defendants also argue that the Uniform Commercial Code ("UCC") bars recovery under these circumstances. The court agrees. This is a contract involving the sales of goods and, as such, is governed by the UCC. The UCC expressly permits a contract to limit or exclude consequential damages so long as the limitation or exclusion is not unconscionable (UCC § 2-719). Moreover, here, the court notes that defendant Allied alleges that plaintiff George Schambach had experience in the industry as the former branch manager of an ABC Supply Co. store, a competitor of Allied (Toth Affidavit, ¶ 4). Plaintiff does not contradict this statement. The court finds that there has been no showing of unconscionability with such a sophisticated consumer as plaintiff herein and, as such, the exclusion here is not unconscionable ( Daily News LP v Rockwell Intl. Corp, 256 AD2d 13 [1st Dept 1998]).
UCC § 2-719 [3] does state that such a limitation in consumer goods cases for injury to the person is prima facie unconscionable, but the damages here relate to property damage, not damage to the person.
In view of the foregoing, the court finds that plaintiffs are prohibited from recovering special and consequential damages under the terms of this contract, as well as common law principles. Consequently, defendants' motions for summary judgment seeking dismissal of plaintiffs' first three causes of action must be granted.
2. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Plaintiffs' fourth cause of action alleging intentional infliction of emotional distress must be dismissed. First, this action was commenced in August 2008 which is well beyond the one year statute of limitations applicable to such actions (CPLR § 215). Second, there is no right to recover for intentional infliction of emotional distress in breach of contract actions ( Hess v Nationwide Mut. Ins. Co., 273 AD2d 689, 690-691 [3rd Dept 2000]). Finally, even if such a cause of action were timely and were proper, the allegations surrounding this alleged breach of contract do not rise to the level warranting such relief which is "[f]or conduct exceeding all bounds usually tolerated by decent society [citation omitted]" ( Fischer v Maloney, 43 NY2d 553, 557). Plaintiffs' opposing papers do not address the merits of their fourth cause of action. In view of the foregoing, defendants' motions seeking summary judgment dismissing plaintiffs' fourth cause of action must be granted as well.
CONCLUSION
For the reasons stated, defendants' motions seeking summary judgment dismissing plaintiffs' complaint is GRANTED and the complaint dismissed. Defendant Allied's cross-claims against defendant GAF are dismissed as well.
This decision constitutes an order of the court. The mailing of a copy of this Decision and Order by this court shall not constitute notice of entry.
It is so ordered.