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St. Patrick's Home for the Aged and Infirm v. Laticrete International9/28/1999
Order, Supreme Court, Bronx County (Luis Gonzalez, J.), entered June 22, 1998, which, to the extent appealed from, denied defendant Laticrete's motion for summary judgment dismissing plaintiff's fourth and fifth causes of action for fraud and violations of General Business Law §§349 and 350, respectively, denied its motion for dismissal of all cross claims asserted by defendants- respondents and granted plaintiff's motion to amend its complaint to add a cause of action for breach of warranty and a request for punitive damages, and to the extent cross-appealed from, granted Laticrete's motion to dismiss the second cause of action for negligent misrepresentation, unanimously modified, on the law, to the extent of dismissing the fourth and fifth causes of action and denying plaintiff's request for punitive damages, and otherwise affirmed, without costs.
Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered on or about January 8, 1999, insofar as it denied Laticrete's renewed motion to dismiss plaintiff's remaining causes of action, unanimously dismissed, without costs, as academic.
Plaintiff St. Patrick's Home for the Aged and Infirm commenced this action in 1994 for damages resulting from the defective construction and installation of the exterior walls of its eight-story nursing home in the Bronx. Defendant Laticrete International, Inc. ("Laticrete") was the manufacturer of the exterior wall panels, which were marketed as components of the "Laticrete Panel System" ("LPS"). Plaintiff hired defendant Lehrer McGovern Bovis ("LMB") as construction manager for the project and defendant Anzelmo and Lombardo A.I.A., P.C. ("A&L;) as the project architect. Laticrete supplied the wall panels to the installer, Panelized Systems Ltd. ("PSL"), which was also hired by plaintiff, but is not a party to this action. Laticrete itself had no contract with plaintiff.
The exterior walls were installed in 1988 and they began leaking during the spring of 1991. Eventually, the wall panels warped and detached from the metal supports apparently due to the water incursion. PSL contacted Laticrete in May 1991 about the leaks and asserted that the backer board used in the Laticrete wall panels was an inferior product known as Duripanel. Laticrete responded that the product it had supplied was its Laticrete EP Board ("EP Board"), which was suitable for use at St. Patrick's, and that Duripanel did not meet its requirements. Apparently, the EP Board was a version of Duripanel that had been improved by adding an epoxy resin coating. The parties convened a meeting in 1992 to discuss the problem, and Laticrete confirmed that its product was suitable for the project but agreed to provide assistance in determining the cause of the leaks. The gravamen of plaintiff's claims is that Laticrete misrepresented the composition of the backer board and its suitability for use at St. Patrick's, and that it concealed complaints about the product and the existence of a warranty.
At issue on this appeal is the validity of four of the six causes of action asserted by plaintiff against Laticrete in its 1994 complaint and 1997 amended complaint. The first three causes of action for negligence, negligent misrepresentation and strict products liability were dismissed by the IAS court on Statute of Limitations grounds. On appeal, plaintiff challenges only the dismissal of the negligent misrepresentation claim. The IAS court denied Laticrete's motion to dismiss the fourth cause of action for fraud and the fifth cause of action alleging violations of General Business Law §§349 and 350. The court also granted plaintiff's cross motion to amend the complaint to add a sixth cause of action for breach of w
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