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Fallati v. Concord Pools, Ltd.

Supreme Court of New York, Third Department

June 22, 2017

PAUL. FALLATI, Appellant,
v.
CONCORD POOLS, LTD., Respondent.

          Calendar Date: May 5, 2017

          Law Office of Rudolf J. Meola, Albany (Rudolf J. Meola of counsel), for appellant.

          Hinman Straub, PC, Albany (David B. Morgan of counsel), for respondent.

          Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

          MEMORANDUM AND ORDER

          Egan Jr., J.

         Appeal 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.

         In July 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 [1] 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. [2]

         We 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 [2012] [citations omitted]; see Starakis v Baker, 121 A.D.3d 669, 671 [2014]), 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 [2]). A breach of warranty claim accrues "when tender of delivery is made" (UCC 2-725 [2]) and generally "must be commenced within four years [there]after" (UCC 2-725 [1]).

         Contrary 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 [2017]). Thus, plaintiff's claim is not encompassed by the four-year statute of limitations set forth in UCC 2-725 [3] 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 [2007]; County of Chenango Indus. Dev. Agency v Lockwood Greene Engrs., 114 A.D.2d 728, 729 [1985], appeal dismissed 67 N.Y.2d 757');">67 N.Y.2d 757 [1986]; Schenectady Steel Co. v Trimpoli Gen. Constr. Co., 43 A.D.2d 234, 237 [1974], affd 34 N.Y.2d 939');">34 N.Y.2d 939 [1974]) [4]. 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 taking part.

         ORDERED that the order is affirmed, with costs.

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Notes:

[1] 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 ...


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