MG [Sets]." By fax dated March 30, 1989, Iovine sent Rudox a copy of HHC's March 21 letter, and demanded to "know what you and your supplier are going to do to get these [MG Sets] to perform or buy the ones specified in [the March 21 letter]." That same day, Rudox responded by fax to Iovine indicating that "the generator manufacturer is running tests next week utilizing wiring diagrams of elevator controller . . . from Republic Elevator to determine what the problems are and what is required to get this project working." Thereafter, based on, inter alia, meter readings from certain existing DC to DC MG Sets in building C, investigation of available information about the operation of the 25 KW MG Set, and communications with Horlick and Kato, Rudox concluded in a May 9, 1989 letter to Iovine that "based on information to date and meter readings of actual loads there is no reason why the 25 KW generator will not handle the elevator motor loads. If proper controls are provided there is also no reason the elevator system should not work properly."
17. Eventually, HHC and Iovine agreed in September 1989 to install "rectifiers" at the Hospital's elevators (except at the six elevators where Republic agreed to provide 30 KW MG Sets) rather than new MG Sets, so that the existing DC to DC MG Sets could operate when the Hospital converted from DC power to AC power, which was expected to be completed by December 31, 1989. Consequently, Iovine never installed or tested any of the remaining 25 Rudox MG Sets.
18. Iovine claims that Rudox did not adequately respond to requests from Iovine concerning purported problems with Rudox's 25 KW MG Set installed in Elevator C-6. To the contrary, the evidence, including the documentary evidence in paragraph 16, supra, does not demonstrate that under the circumstances Rudox failed to adequately respond to requests by Iovine for assistance in resolving alleged problems with the Rudox 25 KW MG Sets.
19. The parties offered conflicting testimony and documentary evidence as to whether the Rudox MG Sets were defective or whether they were suitable for elevator service, and whether the Rudox 25 KW MG Set installed in Elevator C-6, in particular, was defective or whether it was suitable for elevator service. Rudox's expert witness, Walter Figiel, testified that the Rudox MG Sets, including the 25 KW MG Set installed in Elevator C-6, were suitable for elevator service if they were installed properly and the elevator controllers were adjusted properly. On the other hand, Iovine relied heavily on HHC's determination that the Rudox 25 KW MG Set installed by Republic was undersized and was not capable of maintaining the existing operating speed of the elevators (i.e., the speed achieved by the existing DC to DC MG Sets) and was not suitable for elevator service. In addition, Iovine's expert witness, Hubert Hayes, testified that the Rudox MG Sets were not capable of operating an elevator. However, Iovine failed to introduce evidence to demonstrate that Republic properly installed the 25 KW MG Set in Elevator C-6 and that the elevator controller operated properly and was adjusted properly. Iovine also failed to explain adequately the cause of the difficulties experienced by Elevator C-6 even with the 30 KW MG Set installed by Republic. The evidence does not demonstrate that the Rudox 25 KW MG Set installed in Elevator C-6 was defective or was not suitable for elevator service if it was installed properly and the elevator controller was adjusted properly or that the remaining 25 Rudox MG Sets were defective or were not suitable for elevator service.
CONCLUSIONS OF LAW
1. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332. As the parties agree, New York law governs Iovine's claims.
2. In Counts One through Four and Seven of the complaint, Iovine asserts claims against Rudox for breach of the purchase order agreement and breach of express and implied warranties. Initially, Rudox maintains that these claims are barred by the applicable statute of limitations, which the parties agree is Uniform Commercial Code § 2-275. See N.Y.U.C.C. § 2-275. Pursuant to § 2-275(1), an action for breach of a contract for the sale of goods must be commenced within four years from the time the claim accrues. N.Y.U.C.C. § 2-275(1). "A sales contract is breached when nonconforming goods are delivered, regardless of whether the purchaser is aware of the breach at that time." Long Island Lighting Co. v. Transamerica Delaval, Inc., 646 F. Supp. 1442, 1454 (S.D.N.Y. 1986). Pursuant to § 2-275(2), an action for breach of warranty must be commenced within four years from "tender of delivery." N.Y.U.C.C. § 2-275(2). The limitations period begins to run "when the seller tenders delivery of defective goods, unless the warranty expressly extends to future performance." City of New York v. Pullman Inc., 662 F.2d 910, 919 (2d Cir. 1981), cert. denied sub nom. Rockwell Int'l Corp. v. City of New York, 454 U.S. 1164, 71 L. Ed. 2d 320, 102 S. Ct. 1038 (1982); see also H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 455 (2d Cir. 1991).
Rudox contends that the four year limitations period for Iovine's breach of contract and warranty claims began running in October 1985 when the MG Sets were made available for delivery to Iovine. Because this action was commenced on July 12, 1991, Rudox argues that these claims are time-barred. Iovine, on the other hand, contends that the limitations period began to run, at the earliest, in January or February 1988, when the MG Sets were delivered to the jobsite for installation. Alternatively, Iovine contends that Condition 5 of the purchase order constitutes "a warranty explicitly extending to future performance," and demonstrates that Rudox's warranties would commence not at date of delivery, but at a future date upon acceptance of Iovine's work by HHC.
Upon consideration of the evidence, this Court finds that -- for purposes of § 2-275(1) -- the statute of limitations began to run in October 1985 when Rudox tendered delivery of the MG Sets to Iovine and agreed to store them at its facility, at Iovine's request and expense, because the jobsite was not readied for their installation, see N.Y.U.C.C. § 2-503. Accordingly, Iovine's breach of contract claim, Count One, is time-barred.
However, Iovine's breach of warranty claims are not time-barred. Condition 5 of the purchase order clearly establishes the parties' intent that, for purposes of § 2-275(2), "tender of delivery" would occur not upon delivery of the MG Sets, but upon HHC's acceptance of Iovine's work. Consequently, the four year statute of limitations on "all warranties" could not have expired by July 12, 1991, the date this action was commenced as the MG Sets were not even delivered to the jobsite for installation until January and February 1988. Accordingly, Iovine's breach of warranty claims are not time-barred.
Nevertheless, upon considering all of the evidence, Iovine failed to prove that the Rudox 25 KW MG Set installed in Elevator C-6 was defective or was not suitable for elevator service if installed properly and the elevator controller adjusted properly or that the remaining 25 Rudox MG Sets were defective or were not suitable for elevator service. Particularly significant is Iovine's failure to demonstrate that Republic properly installed the 25 KW MG Set in Elevator C-6 and that the elevator controller was adjusted properly and operated properly. Also significant is Iovine's failure to explain adequately the cause of the difficulties experienced by Elevator C-6 with the 30 KW MG Set installed, particularly since these difficulties were similar to those complained of during installation of the Rudox 25 KW MG Set.
Accordingly, Counts Two through Four and Seven are dismissed.
3. In Count Six, Iovine purportedly asserts that Rudox's breaches resulted from Rudox's negligence. Under New York law, a party may not maintain a claim for negligence if the purported claim is merely a claim for breach of contract; rather, the party must allege, and ultimately prove, the violation of a duty independent of the contract. See Clark-Fitzpatrick, Inc. v. Long Island R.R., 70 N.Y.2d 382, 521 N.Y.S.2d 653, 656-57, 516 N.E.2d 190 (N.Y. 1987). Because Count Six is merely a restatement of Iovine's claims alleging breach of contractual obligations, this count must be dismissed. Accordingly, Count Six is dismissed.
4. In Count Five, Iovine asserts a claim for fraudulent inducement in entering the purchase order agreement. Specifically, Iovine claims that Rudox fraudulently represented that the Rudox MG Sets were suitable for elevator service, thereby inducing Iovine to enter the purchase order agreement. A claim based on fraud in the inducement will lie where the alleged fraudulent statements are representations of present fact, but not where they are merely promissory statements as to what will be done in the future. Stewart v. Jackson & Nash, 976 F.2d 86, 88-89 (2d Cir. 1992). The fraudulent representations alleged are not representations of present fact but promissory statements as to what will be done in the future. In any event, even assuming that the alleged representations were representations of present fact, Iovine's fraud claim fails because Iovine failed to establish that the MG Sets were not suitable for elevator service. Accordingly, Count Five is dismissed.
5. In Count Eight, Iovine purports to assert a separate claim for punitive damages based on Rudox's allegedly fraudulent inducement of the purchase order agreement. A party may not maintain a separate claim for punitive damages; where punitive damages may properly be awarded, they may properly be demanded as a form of relief, and a separate claim for punitive damages should be deemed a request for this relief. Fletcher v. Atex, Inc., 1993 U.S. Dist. LEXIS 3799, No. 92 Civ. 8758, 1993 WL 97321, slip op. at 2 (S.D.N.Y. March 30, 1993); Goldberg v. New York Times, 66 A.D.2d 718, 411 N.Y.S.2d 294, 295 (1st Dep't 1978). Nevertheless, because all of Iovine's claims are dismissed, there is no basis for an award of punitive damages.
6. Based on the foregoing, the Clerk of the Court is directed to enter judgment against plaintiff Iovine and in favor of defendant Rudox on all of Iovine's claims.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
December 9, 1994