Tort/Negligence — Products Liability – Windows – Contract – Release – Unconscionability – Civil Practice – Statutes of Limitations – New York Law

Romig v. Pella Corp. (Lawyers Weekly No. 002-251-14, 20 pp.) (David Norton, J.) 2:14-cv-00433; D.S.C.

Holding: Although plaintiff signed a release the first time defendants replaced his defective windows, plaintiff argues that the release is unconscionable. There is no evidence in the record regarding the circumstances surrounding the signing of the release, plaintiff’s experience and education, or whether plaintiff lacked a meaningful choice. At the motion to dismiss stage, the release does not bar plaintiff’s claims.

Nevertheless, the court dismisses all of plaintiff’s claims, except his breach of express warranty claim to the extent he relies on defendants’ failure to repair or replace windows under a limited warranty.

Plaintiff argues that the various statutes of limitations are equitably tolled in this case. However, plaintiff alleges that defendant Pella Corp. “continued its practice of concealing the defective nature of the windows while attempting to absolve itself of liability for the defects.” Pella contends that this is not a sufficient “separate act,” but rather the continuation of the fraudulent concealment. Indeed, all of Pella’s alleged wrongdoing relates to the purported fraudulent concealment of the defects in the windows – the exact same acts which form the basis of the underlying cause of action. Therefore, equitable tolling does not toll the statutes of limitations for plaintiff’s claims.

There is no indication that New York recognizes cross-jurisdictional class action tolling, and the court declines to establish such a rule in the first instance. The statutes of limitations for plaintiff’s claims are not tolled by class action tolling.

Under New York law, a claim for deceptive trade practices is subject to a three-year statute of limitations, which accrues when “the plaintiff was injured.” Accrual is not dependent upon any later date when discovery of the alleged deceptive practice is said to occur.

Plaintiff’s alleged injury occurred, at the latest, in 2006 when Pella provided him with allegedly defective replacement windows. Therefore, the statute of limitations for plaintiff’s deceptive trade practices claim expired in 2009, approximately four years before he filed suit.

Plaintiff’s negligence claims are subject to a three-year statute of limitations, accruing when the injury first occurred. Since plaintiff’s injury arose by 2006 at the latest, his negligence claims are time-barred.

Under New York law, breach-of-warranty claims are subject to a four-year statute of limitations, accruing upon delivery unless the warranty explicitly extends to future performance.

By their very nature, implied warranties cannot explicitly extend to future performance. Because plaintiff’s windows were delivered in 2006 at the latest, his implied warranty claims expired in 2010, approximately three years before he filed this action.

As to plaintiff’s breach of express warranty claim, warranties to repair or replace the product in the event that it fails to perform, without any promise of performance, do not constitute warranties of future performance.

Pella allegedly promised “years of smooth openings and closings” and “years of comfortable ownership.” Plaintiff has not alleged that the windows failed to open and close smoothly. The second statement is puffery that cannot create an express warranty.

Because plaintiff has not alleged any express warranties extending to future performance of the goods, his express warranty claim regarding the windows being free from defects expired four years after the replacement windows were delivered.

However, since Pella’s denial of plaintiff’s 2012 warranty claim is potentially covered by the limited warranty, the court will not dismiss plaintiff’s breach of express warranty claim to the extent it relies on Pella’s failure to repair or replace pursuant to the terms of the limited warranty.

In New York, the statute of limitations for fraud claims is “the greater of six years from the date the cause of action accrued or two years from the time the plaintiff … discovered the fraud, or could with reasonable diligence have discovered it.” N.Y. C.P.L.R. § 213(8).

The complaint lacks any detail which would allow the court to determine that plaintiff could not have discovered the fraud before the two-year period prior to the commencement of the action. Plaintiff’s fraud claims are dismissed.

Under New York law, the six-year statute of limitations for unjust enrichment claims accrues upon commission of the wrongful act giving rise to the duty of restitution. Plaintiff contends that Pella was unjustly enriched when he purchased the allegedly defective windows. Although the complaint does not specify the time of purchase, it was obviously before the release was signed in 2004. Therefore, plaintiff’s unjust enrichment claim was time-barred by 2010.

Motion granted in part.