SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

731 

CA 13-01672 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ. 

 

CLARK BONO ROOFING & CONSTRUCTION COMPANY, INC., 

PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

NORD BITUMI U.S., INC., DEFENDANT-RESPONDENT. 

 

JOSEPH MAKOWSKI, LLC, BUFFALO (ALISA A. LUKASIEWICZ OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

GOLDBERG SEGALLA LLP, BUFFALO (DANIEL B. MOAR OF COUNSEL), FOR

DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Erie County (Penny M.

Wolfgang, J.), entered June 3, 2013. The order granted the motion of

defendant for summary judgment seeking dismissal of the complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff is a roofing company that defendant had

approved to install defendant’s roofing systems. In 1983, plaintiff

installed roofs on three certain commercial buildings, and defendant

provided a 10-year warranty covering “materials and workmanship” on

each roof to the owner of those buildings. Approximately 13 months

after installation, the roofs leaked, and plaintiff was required to

make various repairs to the roofs during subsequent years, allegedly

because of defendant’s defective materials. In 1991, plaintiff and

the owner of the buildings commenced this action alleging, inter alia,

a cause of action for breach of express warranty. The owner of the

buildings subsequently discontinued its action against defendant, and

defendant thereafter moved for summary judgment seeking dismissal of

the complaint, which Supreme Court granted in its entirety. We

affirm.

We reject plaintiff’s contention that the court erred in granting

that part of defendant’s motion seeking dismissal of the cause of

action for breach of express warranty. Defendant met its burden of

establishing that the word “owner” as used in the warranties

unambiguously referred to the owner of the commercial buildings where

the roofs were installed, and that there was no other reasonable

construction of that word (see DiPizio Const. Co., Inc. v Erie Canal

Harbor Dev. Corp., 120 AD3d 905, 906; Jellinick v Naples & Assoc., 296

AD2d 75, 78-79; see generally W.W.W. Assoc. v Giancontieri, 77 NY2d
-2- 731 

CA 13-01672 

157, 162), and plaintiff failed to raise a triable issue of fact (see

generally Zuckerman v City of New York, 49 NY2d 557, 562). Contrary

to plaintiff’s contention, the term “owner” cannot refer to plaintiff

inasmuch as plaintiff is identified in the warranties as the “approved

roofing contractor,” and the warranty covers for the owner’s benefit

the materials used by plaintiff and plaintiff’s workmanship in

conjunction therewith. Thus, because plaintiff was not a party

entitled to the benefit of the express warranty, it may not assert a

cause of action against defendant for the breach thereof (see

generally Martin v Dierck Equip. Co., 43 NY2d 583, 589). Inasmuch as

plaintiff relies exclusively upon that cause of action for its claim

to damages, the court properly granted the motion in its entirety and

dismissed the complaint (see CPLR 3212 [b]).

In light of our determination, we do not reach plaintiff’s

remaining contentions.

Entered: July 10, 2015 Frances E. Cafarell

Clerk of the Court