The opinion of the court was delivered by: SWEET
ROBERT W. SWEET, U.S.D.J.
This is a renewed motion for summary judgment, brought with respect to those causes of action that survived this court's opinion of May 15, 1984. The motion is granted, and the complaint is dismissed.
Plaintiff Texas Eastern Transmission Corporation ("TETCO") filed the complaint in this action against General Electric Company ("GE") on May 5, 1983. Diversity jurisdiction was alleged. TETCO filed an amended complaint, and GE brought a motion to dismiss that was treated as a motion for summary judgment pursuant to Fed.R.Civ.P. 12(b). The resulting opinion of May 15, 1984 dismissed TETCO's first, second, fifth, sixth, seventh, and eighth causes of action for failure to state a claim. The third and fourth causes of action, which were deemed to allege "negligent performance of a service contract," survived the intial [initial] motion. GE has now renewed the motion, alleging that the third and fourth claims are barred both by the applicable statute of limitations and the warranty limitations in the service contract.
Facts sufficient to resolve this motion are not in dispute and are set forth in the May 15, 1984 opinion and will be summarized here. GE is in the business of designing, manufacturing and selling gas turbines. In the early 1960s, TETCO purchased two 8000 HP, MS-3002 gas turbines designed and manufactured by GE for generating purposes.
TETCO removed one of the turbines for inspection and overhaul during the period August 14, 1970 through August 30, 1970 and sent it to GE's repair facilities for cleaning and inspection. From May 30, 1972 to June 21, 1972 the other turbine was sent to GE's Houston repair facility.
During 1970, GE became aware of the problem of dirt accumulation in turbines similar to those purchased by TETCO, specifically that dirt court become trapped between the Bucket platforms in the seal pin groove and in October 1970, GE issued a Technical Information Letter ("TIL") concerning the problem to many of its customers, but not to TETCO. GE also sent TILs to owners of the Turbines in 1973 and 1976. TETCO asserts that it did not receive the 1973 or 1976 TILs and did not have a timely or adequate warning of the information contained in the TILs. GE contends to the contrary.
In January 1982, both Tetco turbines failed. GE and TETCO are in agreement on the above stated facts except for the state of TETCO's knowledge about the information contained in the TILs and nature of the damage resulting form the Buckets' failure.
In this diversity action New York choice of law rules. Day and Zimmermann, Inc. v. Challoner, 423 U.S. 3, 46 L. Ed. 2d 3, 96 S. Ct. 167 (1975); Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). New York's "borrowing statute," CPLR § 202, states:
An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued ...
If the causes of action alleged are barred by the applicable New York statute of limitations, the case must be dismissed, even if the causes of action would not be barred elsewhere.
Both TETCO and GE rely upon Sears, Roebuck & Co. v. Enco Assoc., Inc., 43 N.Y.2d 389, 401 N.Y.S.2d 767, 372 N.E.2d 555 (Ct.App.1977), a recent Court of Appeals analysis of statutes of limitations in contract based negligence actions. Sears was an action against architects for negligence in the performance of a contract for the construction of a parking ramp. The contract was formed in 1967 between Sears and Enco, the architects. Work was commenced in 1967 and completed in 1968. In May 1970 cracks appeared in the structure, and in 1972 the action was commenced. The court held that, where there was no claim for personal injury, application of New York's contract statute of limitations was appropriate, because the obligation of the defendants, whether characterized in the complaint as tort or contract, arose out of the contractual relationship between the parties. "Absent the contract between them, no services would have been performed and thus there would be no claims." 401 N.Y.S.2d at 470-71. The Court therefore permitted the plaintiff's contract based claims to continue, since they were commenced within the six year contract statutory period. See Video Corp. v. Frederick Flatto Assoc., 58 N.Y.2d ...