ADDITIONAL CASES Gary Zervas and Adirondack Mountain Ridge Estates d/b/a Adirondocks, LLC, Third-Party Plaintiffs, v. Allerdice Building Supply, Inc., Third-Party Defendant DECISION AND ORDER Plaintiffs Carolyn and William Fischer own lakefront property located on Lake George in the Town of Hague, Warren County. In August 2016, plaintiffs contracted with defendant/thirdparty plaintiff Adirondack Mountain Ridge Estates d/b/a Adirondocks, LLC (hereinafter Adirondocks) relative to the demolition of their existing dock and the installation of a new one. Adirondocks is owned by defendant/third-party plaintiff Gary Zervas. While Adirondocks apparently recommended Ipe decking for the new dock, plaintiffs instead chose Red Balau decking — a less costly alternative. Adirondocks then ordered the Red Balau decking from third-party defendant Allerdice Building Supply, Inc. (hereinafter Allerdice) and completed installation of the dock in November 2016. In April 2017, plaintiffs contacted Adirondocks to advise of certain defects in the dock. Zervas inspected the dock and noted “that a few pieces of the decking material had begun to cup and/or check.1 Adirondocks “replaced [those pieces], but…over time, [the problem] got worse,” Zervas ultimately concluded that the Red Balau decking was defective and he contacted Allerdice, who then sent Donald Cox — its Sales Manager — to inspect the dock. Cox, however, concluded that any defects in the dock resulted from improper installation. In July 2018, plaintiffs commenced this action against defendants/third-party plaintiffs (hereinafter referred to as defendants) alleging, inter alia, that they “did not perform the work [on] the dock in a good and workmanlike manner.” Issue was joined and, in January 2019, defendants commenced a third-party action against Allerdice alleging that the material supplied “was either ill-suited for [the] particular project and climate and/or [was] delivered to [Adirondocks] in a damaged or defective state.” Issue was joined in this third-party action as well and, in May 2019, Allerdice filed a motion for summary judgment seeking to dismiss the third-party complaint. By Decision and Order dated August 20, 2019, the motion was denied as premature and discovery has since been completed. Presently before the Court is Allerdice’s second motion for summary judgment seeking to dismiss the third-party complaint. Cupping refers to bending in the decking material, while checking refers to cracking. On a motion for summary judgment, the movant must establish, by admissible proof, its entitlement to judgment as a matter of law (see Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 967 [1988]; Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has met this initial burden, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of fact (see Zuckerman v. City of New York, 49 NY2d 557, 560 [1980]). At the outset, it should be noted that Allerdice failed to attach “a copy of the pleadings” to its motion, as required under CPLR 3212(b). That being said, such failure was not addressed by defendants in their opposition to the motion and cannot be raised by the Court sua sponte (see Mew Equity, LLC v. Sutton Land servs., LLC, 144 AD3d 874, 877 [2016]). The failure constitutes a mere irregularity in any event, given the availability of the pleadings on NYSCEF (see id.).1 To the extent that this dispute concerns Allerdice’s sale of goods — namely, the Red Balau decking — it is governed by article 2 of the Uniform Commercial Code (UCC) (see Sears, Roebuck & Co. v. Galloway, 195 AD2d 825, 826 [1993]), which includes an implied warranty of merchantability and an implied warranty of fitness for a particular purpose. Allerdice first contends that the implied warranty of merchantability is inapplicable. “‘The implied warranty of merchantability is a guarantee by the seller that its goods are fit for the intended purpose for which they are used and that they will pass in the trade without objection’” (Wojcik v. Empire Forklift, Inc., 14 AD3d 63, 66 [2004], quoting Saratoga Spa & Bath v. Beeche Sys. Corp., 230 AD2d at 330 [citation omitted]). “To establish that a product is defective for purposes of a breach of implied warranty of merchantability claim, a plaintiff must show that the product was not ‘reasonably fit for [its] intended purpose” (Wojcik v. Empire Forklift, Inc., 14 AD3d at 66, quoting Saratoga Spa & Bath v. Beeche Sys. Corp., 230 AD2d at 330; see UCC 2-314[2] [c]), with this inquiry “focus[ing] on the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners” (Wojcik v. Empire Forklift, Inc., 14 AD3d at 66; Denny v. Ford Motor Co., 87 NY2d 248, 258-259 [1995]). Here, Allerdice has submitted the transcript of Zervas’ deposition testimony which states that the decking “looked great” upon delivery, and the project “looked very nice” upon completion. Allerdice has further submitted an affidavit from Cox, who opines that the decking failed several months after completion because of defendants’ failure to follow the manufacturer’s guidelines during installation. In this regard, Cox identifies “Nelson International[as] the manufacturer of the material at issue,” and further states as follows: “Nelson International…addresses how to prevent…adverse effects in its ‘Installation Essentials for Hardwood Decking, Storage and Handling’. pamphlet[,which] specifically provides that: “a. The material be kept ‘dry and out of direct sunlight’ prior to installation; “b. the material be sealed with a ‘high-quality penetrating oil or sealer on all sides prior to installation. Sealing only one side can create uneven moisture flow, which increases the likelihood of cupping’ (emphasis added); “c. [d]uring installation of the material ‘[a]llow adequate ventilation for proper air-flow to reduce cupping and checking on the surface. [Nelson] recommends 16″ off the ground for 4″ wide stock, and 36″ off the ground for 6″ wide stock” (emphasis added); “d. ‘excessive moisture can cause the boards to expand slightly….’,'”e. ‘DO NOT use hidden fasteners or nails’ (emphasis supplied)” It is undisputed that defendants (1) stored the decking material outside prior to installation; (2) failed to seal the decking material prior to installation and in fact did not do so until the following spring, at which time only the top of the dock was sealed; (3) installed 6″ wide stock less than 36″ above the ground and water level;2 and (4) installed the decking material using hidden fasteners. With these submissions Allerdice has succeeded in demonstrating that the implied warranty of merchantability is inapplicable as a matter of law, thus shifting the burden to defendants to raise a triable issue of fact. In this regard, defendants submit the affidavit of Zervas, who states that Allerdice never provided defendants with a copy of Nelson International’s Installation Essentials pamphlet, nor did it even advise that Nelson International was the manufacturer of the decking. Zervas further states that Allerdice supplied the hidden fasteners for the project, and grooved the decking for these hidden fasteners before delivery. According to Zervas, at no point did Allerdice suggest that hidden fasteners should not be used when installing the dock. Zervas also indicates that he never seals decking material prior to installation and had no reason to believe such sealing was required with the Red Balau decking. The Court finds that defendants have succeeded in raising a triable issue of fact. To the extent that Allerdice specifically grooved the Red Balau decking for hidden fasteners prior to delivery, the argument can certainly be made that the product — as delivered — was not reasonably fit for its intended purpose. Briefly, Allerdice contends that defendants failed to reject the decking within a reasonable time, as required under UCC 2-607 (3) (a). That being said, “[t]imely notification under [UCC] 2-607 ‘is governed by the standard of reasonableness and is a question of fact” (Cliffstar corp. v. Elmar Indus., 254 AD2d 723, 724 [1998], quoting cuba Cheese v. Aurora val. Meats, 113 AD2d 1012, 1012 [1985]). Indeed, while defendants did not reject the decking immediately upon delivery, they were not aware of any issues until plaintiffs alerted them to the cupping and checking in April 2017. Following an inspection of the decking at that time, they then promptly notified Allerdice. Under the circumstances, questions of fact clearly exist. Allerdice next contends that the implied warranty of fitness for a particular purpose is inapplicable. “For an implied warranty of fitness for a particular purpose claim to arise, the buyer must establish that the seller had reason to know, at the time of contracting, the buyer’s particular purpose for which the goods are required and that the buyer was justifiably relying upon the seller’s skill and judgment to select and furnish suitable goods, and that the buyer did in fact rely on that skill” (Saratoga spa & Bath v. Beeche sys. corp., 230 AD2d 326, 331 [1997], IV dismissed 230 AD3d 326 [1997]; see UCC 2-315; United States Leasing Corp. v. Comerald Assocs., 101 Misc 2d 773, 777 [Civ Ct, NY County 1979]). “‘The existence of this warranty, therefore, depends in part upon the comparative knowledge and skill of the parties” (Saratoga Spa & Bath v. Beeche Sys. Corp., 230 AD2d at 331, quoting Blockhead, Inc. v. Plastic Forming co., 402 F supp 1017, 1024 [1975]). Here, Allerdice submits the affirmation of its counsel who contends that defendants used the Red Balau decking for an ordinary purpose and not a “particular purpose,” as that term is used in UCC 2-315. In this regard, the practice commentaries accompanying UCC 2-315 state that “a ‘particular purpose’ differs from the ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of his business whereas the ordinary purposes for which goods are used are those envisaged in the concept of merchantability and go to uses which are customarily made of the goods in question” (Editors’ Notes, Office Comment, McKinney’s Cons Laws of NY, Book 62 1/2, UCC 2-315). Allerdice also relies upon the affidavit of Cox, who states that “Allerdice made no recommendation or representation whatsoever as to the suitability of the materials for the [p]roject[, and] Adirondocks never requested any recommendation, opinion nor advice concerning the material or its suitability for the [p]roject.” To the extent that counsel for Allerdice does not claim to be an expert on Red Balau decking, his opinion that defendants used the Red Balau decking for an ordinary purpose is largely unavailing. Had this opinion been rendered by Cox, a longtime salesman of decking products, it would certainly be more persuasive. That being said, to prevail on their claim that Allerdice breached the implied warranty of fitness for a particular purpose, defendants must establish not only that Allerdice was aware of the particular purpose for which the decking was being used, but also that they relied on Allerdice’s expertise in selecting the decking. It does not appear — based on Cox’s statements — that defendants can make this latter demonstration. Indeed, Zervas is a skilled carpenter who has installed “over 200″ docks in the Lake George area. His knowledge and skill is comparable to that of Allerdice. On this evidence Allerdice has succeeded in demonstrating that the implied warranty of fitness for a particular purpose is inapplicable as a matter of law, thus shifting the burden to defendants to raise a triable issue of fact. In this regard, defendants again rely upon Zervas’ affidavit, which states that “[alt all times[] Allerdice…was aware that the [R]ed [B]alau decking would be used in the construction of a dock.” Zervas does not, however, state that he relied in any way on Allerdice’s recommendation in selecting the Red Balau decking. Rather, he makes quite clear that the Red Balau decking was used at plaintiffs’ request, and further that its use was contrary to his initial recommendation that Ipe decking be used. Under the circumstances, defendants have failed to raise a triable issue Of fact with respect to the implied warranty of fitness for a particular purpose, which is inapplicable as a matter of law. Finally, Allerdice contends that defendants failed to properly install the dock. This contention is addressed hereinabove in the context of Allerdice’s alleged breach of the implied warranty of merchantability, with the Court finding issues of fact with respect to whether Allerdice shares some blame for the improper installation. Based upon the foregoing, Allerdice’s motion for summary judgment is granted to the extent that the implied warranty of fitness for a particular purpose is inapplicable as a matter of law, and the motion is otherwise denied with questions of fact as to whether Allerdice breached the implied warranty of merchantability. Counsel for the parties are hereby directed to appear for a conference on October 20, 2021 at 10:00 A.M., which conference will be conducted virtually via Microsoft Teams. Therefore, having considered NYSCEF documents 64 through 67, 69 through 71, and 74, and oral argument having been heard on September 14, 2021 with John D. Wright, Esq. appearing on behalf of defendants/third-party plaintiffs and John P. Mastropietro, Esq. appearing on behalf of third-party defendant, it is hereby ORDERED that third-party defendant’s motion for summary judgment is granted to the extent that the implied warranty of fitness for a particular purpose is inapplicable as a matter of law, and the motion is otherwise denied with questions of fact as to whether third-party defendant breached the implied warranty of merchantability; and it is further ORDERED that any relief not specifically addressed has nonetheless been considered and is expressly denied. The original of this Decision and Order has been e-filed by the Court. Counsel for third party defendant is hereby directed serve a copy of the Decision and Order with notice of entry in accordance with CPLR 5513. Dated: September 22, 2021
