Breach of warranty complaint dismissed over statute of limitations

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A state appeals court has reversed a lower court and dismissed a breach of warranty complaint because the statute of limitations expired.

In May 2021, the city of Tonawanda had a truck serviced by Penn Power Group LLC, in Buffalo. The city claims the truck was “defectively serviced.”

On May 25, 2021, during routine operations, the truck “unexpectedly shut off and stopped working,” according to the complaint.

“Shortly after shutting off, a fire erupted in the engine area of the truck,” the suit claims.

“The fire was caused by the negligent, careless, reckless and/or unlawful conduct on the part of defendants,” according to the complaint.

The complaint claims breach of warranty and negligence and sought $550,000 in damages.

In an amended complaint filed in September 2023, the city added Daimler Truck North America (DTNA) LLC as a defendant. The truck was purchased from DTNA and delivered to the city on Sept. 27, 2019.

“Plaintiff first joined DTNA to this suit and asserted its breach of warranty claim against DTNA with the filing of its amended summons and complaint on May 7, 2024.  Plaintiff’s breach of warranty cause of action against DTNA is thus time barred and should be dismissed,” DTNA’s attorney wrote in court papers.

DTNA filed a motion to dismiss on that basis.

In September 2024, state Supreme Court Justice Frank A. Sedita III, denied the motion, which was appealed to the Appellate Division of state Supreme Court, Fourth Department.

“We agree with defendant that the court erred in denying that part of its motion seeking dismissal of plaintiff’s breach of warranty cause of action against it as untimely,” the court wrote.

Breach of warranty is governed by a four-year statute of limitations, “and accrues when tender of delivery is made,” the court wrote.

“Here, defendant had the initial burden of establishing … that the time in which to sue had expired,” the court wrote.

“Defendant met its initial burden on the motion by submitting evidence that the breach of warranty cause of action against it accrued when defendant delivered the truck in September 2019, more than four years before the amended complaint containing that cause of action was filed in May 2024,” the court wrote.

The burden then shifted to plaintiff to establish that the statute of limitations had not expired, that it was tolled, or that an exception to the statute of limitations applied.

The plaintiff “failed to allege, beyond speculation and conjecture, that an express warranty of future performance was made by defendant and, thus, failed to aver evidentiary facts establishing that this case falls within that exception to the statute of limitations,” the court wrote.

“Plaintiff’s further assertion that the statute of limitations was tolled as a matter of law by a series of executive orders that suspended the running of limitations periods during the COVID-19 pandemic is raised for the first time on appeal and, thus, is not properly before us,” the court wrote.

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