KAREN V. MURPHY, Judge.
Defendant, The Hampton Shipyards, Inc., moves, pursuant to CPLR § 3212, for an Order granting it summary judgment dismissing the plaintiff, Eric Goldsmith ("Goldsmith")'s complaint. The motion is denied.
This is a breach of contract action wherein plaintiff alleges that the defendant did not construct a vessel in a good and workmanlike manner. As best as can be determined from the papers submitted herein, the following facts are undisputed:
Plaintiff, Eric Goldsmith, is the purchaser of a 2006 Columbia II 25' Northsider model cruiser (hereinafter "the Boat").
The defendant is a domestic corporation engaged in the business of boat manufacturing in East Quogue, New York. Non-party Fred Scopinich is the owner and president of the defendant, The Hampton Shipyards, Inc.
On March 18, 2006, plaintiff contracted with the defendant for the purchase of the Boat for $91,545.00, plus tax. Pursuant to the agreement, the defendant was required to construct the boat according to the specifications as set forth in Schedule A which the parties incorporated into the purchase contract. According to the terms of the contract, in addition to the guarantees and warranties by manufacturers/suppliers, defendant unconditionally guaranteed all work, labor and material for one year from the date of delivery of the Boat, i.e., until June 20, 2007. In addition, the defendant also unconditionally guaranteed the hull for five years from the date of delivery of the boat, i.e., until June 20, 2011.
Specifically, the purchase contract stated in pertinent part as follows:
In March 2007, plaintiff dry-docked the boat to perform yearly maintenance. He claims that it was then that he noticed defects to the Boat that he had not been able to see when the Boat was in the water. As a result, beginning in March 2007 through June 2007, plaintiff made complaints to the defendant about the defects in the construction of the Boat. He alleged that he spent approximately $2,700 out of pocket for repairs and hauling of the boat. Plaintiff alleges three main complaints with respect to the defendant's negligence in constructing the Boat: (1) that the gel coating of the boat is damaged and needs to be replaced; (2) that the defendant improperly installed hardware; and (3) that the defendant did not comply with the plaintiffs wishes regarding the installation of a dripless shaft packing log. Plaintiff claims that the defendant has breached the contract by its lack of quality and workmanlike manufacture of the vessel.
Defendant, by it's President, Fred Scopinich, opposes the motion and argues that "it is [his] considered opinion, that the boat in question was built properly that poor maintenance contributed towards the problems the plaintiff alleges" (Scopinich Affidavit, ¶ 27). Specifically, defendant argues that it is the standard practice in the marine industry that manufacturers do not cover gel crack stresses and that the reason for the stress cracks is the flexing of the hull surface that the gel coat is bonded to, flexed or moved an amount beyond the point that the gel coat can flex resulting in cracking (
With respect to plaintiffs allegations surrounding the improper installation of the hardware, defendant argues that as his company used all stainless steel hardware, this claim falls by the wayside (
Finally, with respect to plaintiffs allegations regarding the problems involving the shaft log, defendant states that he had previously informed the plaintiff upon inspection of the Boat that it would be better to use the bronze box with flax packing and that when plaintiff refused, he went ahead and used the dripless packing, as a result of which, he claims, the boat suffered the subsequent damage (
Defendant seeks summary judgment dismissal of plaintiffs complaint.
Summary judgment is the procedural equivalent of a trial (
The issue of skillful and workmanlike manner in the sufficiency of performance of a contract generally comes up in the context of building and construction contracts. However, the requirement of performance in a skillful and workmanlike manner is not so limited (
Further, where plans and specifications are regarded as part of the contract (
In addition, under the provisions of a contract, the performance of one party may be required to be rendered to the satisfaction of the other party (
In moving for summary judgment, the defendant, bears the burden of establishing it's prima facie entitlement to judgment as a matter of law; that is, the defendant is required to show that it did not negligently construct the boat, that it used correct and standard materials and that it constructed the vessel in a good and workmanlike manner. This, it has failed to do.
The facts here are clear that when plaintiff contracted with the defendant for the purchase of the Boat, the defendant was required to construct the boat according to the specifications set forth in the Schedule A. Schedule A specified, inter alia, that not only was stainless deck hardware" required as part of the equipment on the Boat, but a "dripless shaft log was also bargained for by the parties.
Yet, the evidence here confirms that the defendant did not provide the plaintiff with a dripless shaft log as part of the Boat as it was delivered to the plaintiff In fact the defendant, by Fred Scopinich, states in his affidavit, as follows: "Plaintiff wanted a dripless shaft packing installed; however it is my normal practice to install a bronze packing box" (Scopinich Aff., ¶ 24). Defendant also testified that he "chose not to" provide plaintiff with the bargained for dripless shaft log, but instead provided him with a shaft packing, (Scopinich Tr., pp. 41-42) which he thought was a better piece of equipment than the one requested by the plaintiff. Defendant's admission that it did not use the correct materials as outlined in the agreement in constructing the Boat constitutes a breach of the agreement by and between the parties. He knowingly breached the agreement "choosing" to supply the plaintiff with materials other than those requested by him.
With respect to the requirement in the Agreement that the defendant, in constructing the vessel, use stainless steel for the sink, handrails, bow rail, rod holders and deck hardware, the defendant's own evidence again confirms that said requirements were not fulfilled. Scopinich states in his affidavit that "[t]he only exception to using stainless steel hardware which was used in the manufacture of said vessel was in the four engine vents" (Scopinich Tr., ¶ 21). Yet the evidence is clear that when plaintiff first started complaining in March 2007 (through June 2007) about the Boat to Scopinich, his complaints included that the vents were not stainless and were pitting and that the bow rail was of low grade stainless and was actually rusting. His complaints also included that the propellor shaft strut was affixed to the vessel with mixed metal bolts and washers, which he claims, caused the underwater hardware to degrade and rust. Obviously, said complaints by the plaintiff which remain undisputed particularly in light of the defendant's admission that stainless steel hardware was not exclusively used on the Boat (as agreed to in the purchase agreement), is evidence that the defendant constructed the Boat in a negligent manner or that the defendant did not use the correct or standard materials. In fact, the defendant's admission that it did not use stainless steel hardware in the four engine vents, by itself, constitutes an admitted breach of the agreement between the plaintiff and the defendant.
Further, the evidence is clear that according to the terms of the contract, in addition to the guarantees and warranties by manufacturers/suppliers, defendant unconditionally guaranteed all work, labor and material for one year from the date of delivery of the Boat, i.e., until June 20, 2007, and it also unconditionally guaranteed the hull for five years from the date of delivery of the boat, i.e., until June 20, 2011.
Specifically, the guarantee contained within the purchase agreement stated as follows:
(Purchase Agreement, ¶ 8 [Emphasis Added]).
Initially, it is noted that based upon a simple reading of this guarantee provision in the parties' contract, it is plain to this Court that the defendant issued it's own guarantee on top of the manufacturer and supplier guarantees.
Moreover, because an express warranty is part of the "basis of the bargain", its interpretation is governed by the rules of contract interpretation (
Here, defendant does not dispute that it issued an unconditional guarantee for the work, labor and material for one year and five years on the hull from the date of delivery of the Boat. Further, it does not contend that it is not bound by all of the provisions of the guarantee. In fact, in the absence of any evidence (or argument) by the defendant that the gel coating was excluded from it's warranty, there is no reason for this Court to not bind the guarantor, i.e. the defendant, to the promise of performance it made (
That the standard practice in the industry may be to exclude gel coating from the guarantee is of no moment because the defendant's guarantee was on top of the manufacturer and supplier guarantees; it added additional protection to the plaintiff without exception. The gel coating, whether considered work, labor or material, is the responsibility of the seller in this case. Further the fact that the gel coating, which has been described by the defendant's expert, Allen Dannewitz, as coating placed on the hull, certainly falls within the five year unconditional guarantee of the hull.
More basically, the Agreement also clearly states that:
1. The Builder agrees to sell [the Boat], in a good and workmanlike construction.
Defendant has not established that he sold the boat in good and workmanlike construction. Defendant's evidence includes the expert affidavit of Allen Dannewitz the owner of Professional Marine Services, LLC who, inspected the Boat on May 5, 2010 with the intent to "ascertain the extent of the gel coat cracks on the deck and superstructure" (Dannewitz Aff., ¶ 16). He stated that upon inspection, he noted several gel coat cracks which he concluded "have been taken place over the years for various reasons" (
That the agreement also stated that the balance of the purchase price would be provided by the purchaser to the seller "upon completion of boat in new factory condition only after boat has completed successful sea trials to Purchaser's satisfaction and title is transferred at East Quogue, N. Y." is irrelevant in light of the unconditional guarantees given by the seller to the buyer, supra.
In light of the defendant's failure to produce evidence demonstrating it's prima facie showing of entitlement to judgment as a matter of law, it's motion for summary judgment is herewith denied, regardless of the sufficiency of the opposing papers (
The foregoing constitutes the Order of this Court.