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LLC v. Walker & Zanger, Inc.

Supreme Court of New York, First Department

June 25, 2013

West 63 Empire Associates, LLC, doing business as The Empire Hotel, Plaintiff-Appellant,
v.
Walker & Zanger, Inc., Defendant-Respondent.

Altman Schochet LLP, New York (Irena Shternfeld of counsel), for appellant.

Reed Smith LLP, New York (Efrat Menachemi of counsel), for respondent.

Andrias, J.P., Friedman, Sweeny, Saxe, Richter, JJ.

Judgment, Supreme Court, New York County (Lucy Billings, J.), entered May 21, 2012, granting defendant's motion for summary judgment dismissing the complaint, and denying plaintiff's cross motion for leave to amend the complaint, unanimously affirmed, with costs.

Even assuming that plaintiff has standing to sue as an intended third-party beneficiary of a contract for the purchase of natural travertine tile, entered into between plaintiff's interior designer and defendant (see Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 N.Y.2d 38, 45 [1985]), the broad, express, and conspicuous disclaimer of all warranties set forth in the invoice memorializing the sale is fatal to plaintiff's claims for breach of the implied warranties of merchantability and fitness for a particular purpose (see UCC § 2-316; Naftilos Painting, Inc. v Cianbro Corp., 275 A.D.2d 975, 975 [4th Dept 2000]; Sky Acres Aviation Servs. v Styles Aviation, 210 A.D.2d 393, 394 [2d Dept 1994]). Plaintiff's contention that the disclaimer language is not sufficiently conspicuous to be operative is unavailing. The disclaimer is printed in all-capital letters, and dominates the conditions of sale set forth at the bottom of the invoice (see UCC § 1-201[10]). The disclaimer is likewise fatal to plaintiff's claim for breach of contract (see Simone v Homecheck Real Estate Servs., Inc., 42 A.D.3d 518, 521 [2d Dept 2007]; Smith v Fitzsimmons, 180 A.D.2d 177, 180 [4th Dept 1992]).

Plaintiff's unjust enrichment claim was also properly dismissed. The existence of the contract of sale "precludes recovery in quasi contract for events arising out of the same subject matter" (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 N.Y.2d 382, 388 [1987]). The invoice contains the material terms and constitutes an integrated contract "preclud[ing] extrinsic proof to add to or vary its terms" (Matter of Primex Intl. Corp. [Wal-Mart Stores, Inc.], 89 N.Y.2d 594, 600 [1997]; see UCC §§ 2-202, 2-316). The parol evidence rule thus acts as a bar to plaintiff's assertion that, despite the clear disclaimer of any warranties contained in the evidence, defendant nonetheless orally warranted the unfilled natural travertine as being suitable for use in a commercial hotel lobby.

Plaintiff has not demonstrated that there is potential evidence that might be uncovered in discovery that would serve to raise issues of fact supporting its claim. Under the circumstances, summary judgment is appropriate despite the absence of discovery (see Noonan v New York Blood Ctr., Inc., 269 A.D.2d 323, 324 [1st Dept 2000]).


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