The opinion of the court was delivered by: McMAHON, District Judge.
DECISION ON DEFENDANT'S MOTIONS TO DISMISS
On December 18, 2000, plaintiff, John Orlando commenced this
action against, defendant, Novurania of America, Inc.
(Novurania), a manufacturer, distributor and purveyor of water
craft. Plaintiff asserts five separate causes of action: Count I
— breach of express warranty; Count II — breach of implied
warranty of merchantability; Count III — breach of implied
warranty of fitness for a particular purpose; Count IV —
fraudulent misrepresentation; Count V — negligent design,
construction and manufacturing. Plaintiff is seeking to recover
$20,000.00 in compensatory damages on each of his five causes of
action, punitive damages in the amount of $500,000.00, costs and
disbursements and reasonable attorney fees, and for any further
relief the Court may deem just and proper.
Sometime in 1998, plaintiff allegedly began noticing cracks in
the hull of the boat. (Id. at ¶ 10). Plaintiff returned the
boat to Novurania and Novurania repaired the cracks. (Id. at ¶
12). Subsequent to those repairs, additional cracks began to
develop in the boat's hull, however, defendant refused to repair
the boat or return the purchase price. (Id. at ¶ 12, 13, 14).
Plaintiff alleges that the cracks in the hull of the boat are
defects that are a result of faulty workmanship and materials
used by the defendants. (Id. at ¶ 15). At the time the boat
was purchased in 1996, he relied on defendant's representation
that the boat he was purchasing had not been previously
repaired. He later learned that it had been repaired. (Complaint
at ¶ 33-37). Plaintiff alleges that had he known the boat was
previously repaired, he would not have bought it. (Id. at ¶
39). Plaintiff further alleges that defendant had been negligent
in the "design, construction, maintenance, repair and sale" of
the boat, and that that has resulted in damages suffered by
plaintiff. (See Complaint at ¶ 43).
Defendant has filed a motion to dismiss plaintiffs amended
complaint for failure to state a claim upon which relief can be
granted, pursuant to Fed.R.Civ.P. 12(b)(6). Defendant contends
that: (a) counts II and III are barred by the applicable statute
of limitations; (b) count III further fails to allege facts
constituting a breach of implied warranty of fitness for a
particular purpose; (c) counts IV and V (both manufacturer tort
claims): (i) fail to plead any duty on Novurania's part,
separate from its alleged contractual obligations; and (ii) are
barred by New York's economic loss rule; and (d) count IV fails
to plead fraud with the requisite specificity required by
Fed.R.Civ.P. 9(b). Apparently, Defendant has no quarrel with the
sufficiency of count I, which pleads a breach of the express
Fed.R.Civ.P. 12(b)(6) of the Federal Rules of Civil Procedure
provides for dismissal of a complaint that fails to state a
claim upon which relief can be granted. The standard of review
on a motion to dismiss is heavily weighted in favor of the
plaintiff. The Court is required to read a complaint generously,
drawing all reasonable inferences from the complaint's
allegations. California Motor Transport Co. v. Trucking
Unlimited, 404 U.S. 508, 515, 92 S.Ct. 609, 30 L.Ed.2d 642
(1972). "In ruling on a motion to dismiss for failure to state a
claim upon which relief may be granted, the court is required to
accept the material facts alleged in the complaint as true."
Frasier v. General Electric Co., 930 F.2d 1004, 1007 (2d Cir.
1991). The Court must deny the motion "unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief." Stewart v.
Jackson & Nash, 976 F.2d 86, 87 (2d Cir. 1992) (quoting Conley
v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80
Counts II and III of the complaint allege respective causes of
action for breach of the implied warranty of merchantability and
breach of implied warranty of fitness for a particular purpose.
(Complaint at ¶¶ 18-21, 23-28). Because the subject matter of
this action clearly involves the sale of a good (the boat), the
warranty claims in counts II and III are governed by the four
year statute of limitations contained in Article 2 of the New
York's Uniform Commercial Code, (see N.Y.UCC LAW § 2-725
(McKinney 2000); see also Whitney v. Agway, Inc., 238 A.D.2d 782,
785, 656 N.Y.S.2d 455 (3rd Dep't 1997); McGregor v. J. &
L. Adikes, Inc., 112 A.D.2d 204, 491 N.Y.S.2d 426 (2nd Dep't
1985)), and not the six year statute of limitation provided by
section 213 of the Civil Procedure Law and Rules, N.Y. C.P.L.R.
213 (McKinney 2000). In order to be timely filed, plaintiff must
have commenced his implied warranty claims against defendant
within four years of when those cause of actions accrued.
Under Article 2-725(2) of the code:
A cause of action accrues when the breach occurs,
regardless of the aggrieved party's lack of knowledge
of the breach. A breach of warranty occurs when
tender of the delivery is made, except that where a
warranty explicitly extends to future performance of
the goods and discovery of the breach must await the
time of such performance, the cause of action accrues
when the breach is or should have been discovered.
N.Y. UCC 2-725(2). The date of tender rule for determining the
accrual date for warranty actions is quite rigid. See City of
Cohoes v. Kestner Engineers P.C., 226 A.D.2d 914, 640 N.Y.S.2d 917
(3rd Dep't 1996) (City's breach of warranty cause of action
against manufacturer of generator accrued when generator was
purchased more than four years before city brought action
against manufacturer, arising from explosion at station, and,
thus, breach of warranty cause of action was barred by four year
statute of limitations); Heller v. U.S. Suzuki Motor Corp.,
101 A.D.2d 807, 475 N.Y.S.2d 146 (1984), affirmed 64 N.Y.2d 407,
488 N.Y.S.2d 132, 477 N.E.2d 434 (1985) (Breach of warranty
action against manufacturer of motor vehicle commenced more than
four years after manufacturer sold the motorcycle was untimely);
Couser v. Rockwell Intern., Inc., 142 Misc.2d 321,
536 N.Y.S.2d 965 (1989) (Implied warranty of merchantability and
fitness claims by worker against seller of machine accrued on
date seller sold machine to worker's employer, rather than on
date of injury, for purposes of four year statute of limitation
under the Uniform Commercial Code).