        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
