PAUL. FALLATI, Appellant,
CONCORD POOLS, LTD., Respondent.
Calendar Date: May 5, 2017
Office of Rudolf J. Meola, Albany (Rudolf J. Meola of
counsel), for appellant.
Straub, PC, Albany (David B. Morgan of counsel), for
Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Clark,
MEMORANDUM AND ORDER
from an order of the Supreme Court (Zwack, J.), entered
February 18, 2016 in Albany County, which granted
defendant's motion to dismiss the complaint.
2002, plaintiff and defendant entered into a written
contract, whereby defendant agreed to install an in-ground
swimming pool upon plaintiff's property. Approximately
eight or nine years later, "a small hairline crack
appeared in the bottom of the deep end wall" of the
pool. Defendant patched the crack with hydraulic cement and
installed a new liner - at its own expense. Thereafter, in
July 2014, plaintiff advised defendant that the concrete
liner base of the pool had "cracked significantly"
and that a portion "of the deep end of the pool had sunk
several inches." Defendant inspected the pool, concluded
that the bearing soil underneath the pool had settled
and offered to split the cost of the repairs - estimated to
be between $9, 500 and $11, 000 - with plaintiff. In
response, plaintiff commenced this action against defendant
in September 2015 alleging breach of warranty and negligence.
Supreme Court granted defendant's pre-answer motion to
dismiss the complaint, finding, among other things, that the
causes of action set forth therein were time-barred. This
appeal by plaintiff ensued. 
affirm. Regardless of whether plaintiff's first cause of
action is construed as a breach of contract claim or as a
breach of warranty claim, there is no question that such
cause of action is time-barred. "As a general rule, a
breach of contract action for defective construction and
design accrues upon completion of performance, i.e., the
completion of the actual physical work"
(Genesee/Wyoming YMCA v Bovis Lend Lease LMB, Inc.,
98 A.D.3d 1242, 1245  [citations omitted]; see
Starakis v Baker, 121 A.D.3d 669, 671 ), and a
motion to dismiss pursuant to CPLR 3211 (a) (5) is properly
granted where "an action upon a contractual obligation
or liability, express or implied, " is not commenced
within six years (CPLR 213 ). A breach of warranty claim
accrues "when tender of delivery is made" (UCC
2-725 ) and generally "must be commenced within four
years [there]after" (UCC 2-725 ).
to plaintiff's assertion, "the transaction in this
case is predominantly one for services, " i.e., the
construction of a swimming pool, and any "sale of goods
is merely incidental to the services provided" by
defendant (Hagman v Swenson, 149 A.D.3d 1, 3
). Thus, plaintiff's claim is not encompassed by
the four-year statute of limitations set forth in UCC 2-725
but, rather, is governed by the six-year statute of
limitations set forth in CPLR 213 (2) (see Hagman v
Swenson, 149 A.D.3d at 5-6; Gibraltar Mgt. Co., Inc.
v Grand Entrance Gates, Ltd., 46 A.D.3d 747, 747-748
; County of Chenango Indus. Dev. Agency v Lockwood
Greene Engrs., 114 A.D.2d 728, 729 , appeal
dismissed 67 N.Y.2d 757');">67 N.Y.2d 757 ; Schenectady Steel
Co. v Trimpoli Gen. Constr. Co., 43 A.D.2d 234, 237
, affd 34 N.Y.2d 939');">34 N.Y.2d 939 ) . As
plaintiff's claim accrued upon the completion of the
swimming pool in 2002 and this action was not commenced until
2015, plaintiff's breach of contract claim is
time-barred. Plaintiff's remaining arguments are either
lacking in merit or, to the extent that they are premised
upon the applicability of UCC 2-725, need not be considered.
McCarthy, J.P., Lynch and Devine, JJ., concur; Clark, J., not
that the order is affirmed, with costs.
 The warranty section of the written
contract executed by plaintiff and defendant expressly
provided that "[t]his warranty does not extend
to any shifting or settling of earth in excavation
or pool area, under pool base, deck or ...