        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1174
CA 15-00598
PRESENT: SCUDDER, P.J., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.


JEAN POTTER, PLAINTIFF-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KURT GRAGE, INDIVIDUALLY AND AS OWNER, AND DOING
BUSINESS AS INVISIBLE FENCE OF FINGER LAKES AND
MIDSTATE, DEFENDANT-APPELLANT.


LAW OFFICES OF THERESA J. PULEO, SYRACUSE (MICHELLE M. DAVOLI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

GARVEY & GARVEY, BUFFALO (MATTHEW J. GARVEY OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Cayuga County (Thomas
G. Leone, A.J.), entered June 19, 2014. The order denied defendant’s
motion for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion in part and
dismissing the breach of warranty claim, and as modified the order is
affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when she tripped over a wire that was installed
by defendant as a component of an invisible fence, to keep her dog on
her property. The wire was supposed to be buried, but at the time of
the accident defendant had not yet buried it. In her complaint,
plaintiff alleged that she sustained injuries based on defendant’s
negligence and breach of warranty.

     We agree with defendant that Supreme Court erred in denying that
part of his motion for summary judgment dismissing the breach of
warranty claim, and we therefore modify the order accordingly. “[A]
written agreement that is complete, clear and unambiguous on its face
must be enforced according to the plain meaning of its terms”
(Greenfield v Philles Records, 98 NY2d 562, 569; see General Motors,
LLC v B.J. Muirhead Co., Inc., 120 AD3d 927, 928; Davies v Jerry, 107
AD3d 1553, 1554). Here, the warranty in the parties’ contract of sale
provided that defendant was liable for products that were defective by
reason of improper workmanship, but further provided that the
customer’s sole remedy for breach because of this defect was to have
the defective equipment repaired or replaced. In support of his
motion, defendant submitted evidence that, when he became aware that
                                 -2-                          1174
                                                         CA 15-00598

plaintiff had tripped on the subject wire, defendant came to the
property and buried the wire. Defendant therefore established that
plaintiff has no further remedy for breach of warranty, and plaintiff
failed to raise an issue of fact in opposition (see generally
Zuckerman v City of New York, 49 NY2d 557, 562).

     Contrary to defendant’s further contention, however, the court
properly denied that part of the motion seeking summary judgment
dismissing the negligence claim. A defendant “may be liable in tort
when it has breached a duty of reasonable care distinct from its
contractual obligations, or when it has engaged in tortious conduct
separate and apart from its failure to fulfill its contractual
obligations” (New York Univ. v Continental Ins. Co., 87 NY2d 308, 316;
see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389).
We conclude that plaintiff may maintain a separate negligence claim
under the circumstances of this case, in which she alleged that
defendant negligently failed to correct a dangerous condition, of
which he had actual or constructive notice (see Anderson v Nottingham
Vil. Homeowner’s Assn., Inc., 37 AD3d 1195, 1198, amend on rearg 41
AD3d 1324; see generally New York Univ., 87 NY2d at 316). In support
of his motion, defendant failed to establish his entitlement to
summary judgment dismissing that claim (see generally Zuckerman, 49
NY2d at 562). Even assuming, arguendo, that the dangerous condition
was open and obvious, we conclude that such condition is relevant only
to plaintiff’s comparative fault and does not absolve defendant of his
duty (see Cashion v Bajorek, 126 AD3d 1354, 1354).




Entered:   November 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
