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CECILE MENDEL ET AL. v. PITTSBURGH PLATE GLASS COMPANY (10/30/69)

COURT OF APPEALS OF NEW YORK 1969.NY.43379 <http://www.versuslaw.com>; 253 N.E.2d 207; 25 N.Y.2d 340 decided: October 30, 1969. CECILE MENDEL ET AL., APPELLANTS,v.PITTSBURGH PLATE GLASS COMPANY, RESPONDENT, ET AL., DEFENDANT Mendel v. Pittsburgh Plate Glass Co., 29 A.D.2d 918, affirmed. Counsel Margaret A. Boland for appellants. John B McCrory for respondent. Judges Burke, Bergan and Jasen concur with Judge Scileppi; Judge Breitel dissents and votes to reverse in a separate opinion in which Chief Judge Fuld and Judge Gibson concur. Author: Scileppi


Mendel v. Pittsburgh Plate Glass Co., Judges Burke, Bergan and Jasen concur with Judge Scileppi; Judge Breitel dissents and votes to reverse in a separate opinion in which Chief Judge Fuld and Judge Gibson concur.

Author: Scileppi

 In October, 1958 the Pittsburgh Plate Glass Company, the respondent herein, delivered and installed eight glass doors at the front entrance to the Central Trust Building in Rochester, New York. On October 29, 1965 it is alleged that appellant Cecile Mendel opened and was walking through one of the entrance doors leading from the public street into the premises of defendant Central Trust Company, when the door struck her, causing her to fall to the ground and sustain personal injuries.

Appellants alleged four causes of action against respondent and defendant. The first and second causes of action, sounding in negligence, seek recovery for Mrs. Mendel's personal injuries and Mr. Mendel's derivative consequential damages; the third and fourth causes of action, while seeking recovery for the same personal injuries and consequential damages, allege a breach of the implied warranty of fitness for a particular use.

The first and second causes of action, based upon alleged negligence, are not involved on this appeal nor were they subject to any pretrial motions and, therefore, will have to be defended on the merits by both the respondent, Pittsburgh Plate Glass Co., and defendant, Central Trust Company, at trial.

In May, 1967 defendant Central Trust Company's motion to dismiss the third and fourth causes of action based upon alleged breach of warranty, was granted. No appeal was ever taken from that determination.

In August, 1967 Special Term granted respondent, Pittsburgh Plate Glass Co.'s motion to dismiss the third and fourth causes of action based upon alleged breach of warranty. It is from the Appellate Division's unanimous affirmance of that determination that the appellants have appealed herein.

The question presented is what is the applicable Statute of Limitations on appellants' third and fourth causes of action?

If we determine that the causes of action seek recovery for a tortious wrong, then, the action having accrued at the time of the injury and commenced within three years thereafter (CPLR 214, subd. 5), the motion to dismiss was improperly granted. If, however, we view this as a contract action, then, the action having accrued at the time the sale was consummated, the action is barred by the six-year Statute of Limitations (CPLR 213, subd. 2).*fn1 In Blessington v. McCrory Stores Corp. (305 N. Y. 140) this court held the six-year contract Statute of Limitations applicable to an action seeking recovery for personal injuries arising out of a breach of an implied warranty. It was there stated that: "although such a breach of duty may rest upon, or be associated with, a tortious act, it is independent of negligence, and so such a cause of action gets the benefit of the six-year limit of subdivision 1 of section 48 of the Civil Practice Act [now CPLR 213, subd. 2], as being on an implied contract obligation or liability * * * [While] an action for breach of a statutorily implied warranty of fitness may involve, incidentally, some showing of negligence, the contract breached is not merely one to use due care, but is a separate (implied) contract of guaranty that the goods are fit for the purpose for which they are sold and bought (Rinaldi v. Mohican Co., 225 N. Y. 70; Gimenez v. Great Atlantic & Pacific Tea Co., 264 N. Y. 390). Proof of negligence is unnecessary for recovery in such a suit" (p. 147, emphasis added).

This rationale has been followed since the Blessington decision (Citizens Utilities v. American Locomotive Co., 11 N.Y.2d 409; Kakargo v. Grange Silo Co., 11 A.D.2d 796, mot. for lv. to app. den. 8 N.Y.2d 711).

The appellants argue that Blessington does not apply to the instant case because our decision in Goldberg v. Kollsman Instrument Corp. (12 N.Y.2d 432) created in favor of third-party strangers to the contract, a cause of action in tort and not in warranty and, therefore, the three-year-from-the-time-of-the-injury, rather than the six-year-from-the-time-of-the-sale, limitations period should apply. We do not agree. When Goldberg was before us, we were confronted with the issue of whether or not a cause of action other than in negligence should exist in favor of those persons not in privity with the contract of sale. After determining that the cause of action should exist, two avenues were open to us -- either to establish, as other jurisdictions already had, a new action in tort, or to extend our concept of implied warranty by doing away with the requirement of privity. While there is language in the majority opinion in Goldberg approving of the phrase "strict tort liability", it is clear that Goldberg stands for the proposition that notwithstanding the absence of privity, the cause of action which exists in favor of third-party strangers to the contract is an action for breach of implied warranty. The instant action being one for personal injuries arising from a breach of warranty, it is our opinion that Blessington controls and, therefore, the applicable Statute of Limitations is six years from the time the sale was consummated (CPLR 213, subd. 2).

The argument is advanced, however, that a determination in favor of the appellants does not require us to disturb our decision in Blessington for we could limit the three-year-from-the-time-of-the-injury rule only to those parties who are strangers to the contract. Such a rule, however, would create the anomalous situation of possibly giving greater rights to the stranger than to the immediate purchaser. To illustrate: A, the driver and purchaser, and B, passenger, are both personally injured in an automobile accident caused by a manufacturing defect. If the Statute of Limitations has already run on the warranty action, then the purchaser would be relegated to a possible action in negligence whereas the passenger could still sue and recover by merely showing the defect and the resulting injury.

In order to cure such an anomaly, it might be argued that we should simply overrule Blessington and establish a three-year limitations period from the time of the injury for all personal injury actions. This, however, cannot be done for the Legislature by adopting the applicable provisions of the Uniform Commercial Code has already clearly manifested an intention to the contrary.

Subdivisions (1) and (2) of section 2-725 provide:

"(1) An action for breach of any contract for sale must be commenced within four years after the cause ...


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