Fumarelli v. Marsam Development, 1998 N.Y. Int. 0118 (Oct. 20, 1998).

CONTRACTS - HOUSING MERCHANT IMPLIED WARRANTY

ISSUE & DISPOSITION

Issue

Whether the statutory housing merchant implied warranty of General Business Law article 36 B supplants the antecedent common law housing merchant implied warranty recognized in Caceci v. Di Canio Constr. Corp, 72 N.Y.2d 52, 56 (1988).

Disposition

Yes. The statute acts as a complete substitute for the common law remedy.

SUMMARY

In 1991, Plaintiff bought a new condominium from Defendant. The purchase agreement contained a "limited warranty" which modified the warranty provided under General Business Law Article 36 B and excluded all other warranties. In October 1992, Plaintiff discovered several flaws in the property. When Defendant refused to pay the cost of repairs, Plaintiff sued for breach of contract. The Supreme Court denied dismissal holding that Article 36 B does not supersede the common law remedy. The Appellate Division reversed, granting summary judgment to the Defendant and holding that Article 36 B allows a builder to exclude or modify the common law remedy. The Court of Appeals agreed with the Appellate Division and specifically held that "General Business Law article 36 B is a full, effective, and realistic substitute for the protections and rationale recognized in Caceci v. Di Canio Constr. Corp."

Prepared by the liibulletin-ny Editorial Board.