In an earlier day, the law bestowed its protection in certain classes of cases only upon those in contractual privity with an álleged tort-feasor. By its decision today, the majority has brought us to an opposite extreme so as to bestow the benefit of a strict products liability only upon those out of privity. While we agree that there exists a cause of action based on strict products liability separate and distinct from actions founded on warranty or contract, we do not believe that the doctrine of strict liability was intended to be developed subject to the restrictions espoused by the majority.
The majority begins by acknowledging that the language of the Victorson case "indicates that a customer might have a direct cause of action based upon strict products liability separate and distinct from the contract” (emphasis supplied). Yet the majority next suggests there is nothing to indicate that "such a cause of action must necessarily exist” when the complaint alleges facts which make out a "classical” cause of action for negligence or for breach of contractual warranty under the Uniform Commercial Code. Thus, in the same paragraph the majority has recognized the distinction between different causes of action but has refused to permit that distinction to have an operative effect.
This conclusion appears to be regarded as justifiable since "the immediate purchaser is at all times in a position to exact whatever warranty he desires.” Such an attitude, we respectfully submit, refuses to recognize the realities of commercial dealing between manufacturers or merchants on the one hand, and individual consumers on the other, who in actuality are not on a sufficiently equal footing to permit the latter to negotiate contractual protections. It is indeed noteworthy that the law itself recognizes this situation, for otherwise what explanation can there be for the requirement under the *482Uniform Commercial Code that all sales contracts include certain warranties for the protection of the buyer? If the law sees fit to grant certain protections by warranty notwithstanding that a party in privity could conceivably negotiate such protections for himself, what basis exists for concluding that the law refuses to afford the protection of strict products liability to that person where it is equally likely (or unlikely) that he could have negotiated that for himself as well? In our view, there is no basis for such a conclusion.
An examination of the evolution of the doctrine of strict products liability is appropriate at this point. While the majority of the Court of Appeals in the Mendel case expressed its belief "that strict liability in tort and implied warranty in the absence of privity are merely different ways of describing the very same cause of action” (Mendel v Pittsburgh Plate Glass Co., 25 NY2d 340, 345), the effect of Mendel was to deny to those out of contractual privity with a defendant a greater remedy than was available to those in privity. In merely refusing to apply to causes of action by persons out of privity a different Statute of Limitations than that applicable to warranties created by contract (including warranties mandated by the provisions of the Uniform Commercial Code), the court did not deny the existence of a cause of action based on a promise, implied in law, that a product was free of defects, which would extend to persons in as well as out of privity. That Mendel dealt only with the applicability of Statutes of Limitation, and not with the existence of causes of action, is clear from the holding in Victorson overruling Mendel on that very point.
While the opinion in Mendel spoke of elimination of the privity requirement, it was not until Codling v Paglia (32 NY2d 330) that it was expressly held that the existence of an injury-causing defect could by itself be a basis for liability without the necessity of couching responsibility in terms of breach of warranties, express or implied, of fitness for a particular purpose or the like. It was obviously with this distinction in mind that the Victorson court declared that claims based on the theory of strict liability "should not be understood as in any way referring to the liability of a manufacturer of a defective product under familiar but different doctrines of the law of contracts * * * [to] a customer or other person with whom or for whose benefit the manufacturer previously has made a warranty * * * express or im*483plied. * * * [A] particular plaintiff [may] base his case on contract liability or negligence or strict products liability” (Victorson v Bock Laundry Mach. Co., supra, p 400; emphasis supplied). Most significantly, the court later describes the cause of action as being " 'something separate and distinct which sounds in tort exclusively, and not at all in contract; which exists apart from any contract between the parties; and which makes for strict liability in tort’ ” (Victorson v Bock Laundry Mach. Co., supra, p 402; emphasis supplied). In our view, the conclusion is inescapable that if a strict products liability action "exists apart from any contract between the parties”, that cause of action must exist notwithstanding any contract between the parties.
The most compelling point of all, which the majority ignores, relates to a point which the majority itself makes. In Velez v Craine & Clark Lbr. Corp. (33 NY2d 117, 124-125), it was indicated that strict products liability could be limited by contractual provision as between parties to the contract. In our opinion, it unavoidably follows that there would be no reason to hold strict liability subject to contract limitation if that cause of action did not exist in the first instance in favor of a party in contractual privity.
Having concluded that strict products liability is available to the present plaintiff, we take this opportunity to comment upon other contentions raised by the defense.
The contention that plaintiff was collaterally estopped by the prior judgments can be disposed of without extended discussion. The first cause was not determined on the merits, as a result of which there was no determination of plaintiff’s rights. He was simply barred, rightly or wrongly, from pursuing a particular remedy. He should no more be barred now from pursuing the proper remedy, if it is timely, than if the first action had never been brought. This brings us to a consideration of whether the remedy now sought is in fact timely, and again, a lengthy discussion need not be had. The essential holding of Victorson, cast in terms leaving no room for doubt, is that the period of limitations in cases of this sort is three years, as established for claims for personal injury and property damage in CPLR 214, and does not begin to run until the date of injury. Here, the injury took the form of alleged property damage to plaintiff’s land which occurred when the pool collapsed in March of 1973. It is, therefore, obvious that *484the present action was timely when commenced in June of 1974.
The defendant appears to have anticipated these conclusions and seeks to avoid their consequences by arguing that plaintiff seeks to recover damages only to the product itself, and, therefore, has not pleaded the fundamental elements of an action for strict products liability. We agree that damage only to the product itself is not actionable under strict liability theory, and we have previously so indicated where the question was presented in a different context (see Advanced Refrigeration & Appliance Co. v Insurance Co. of North Amer., 42 AD2d 484; Sturges Mfg. Co. v Utica Mut. Ins. Co., 45 AD2d 52, revd. on other grounds 37 NY2d 69). We do not agree, however, with defendant’s reading of the present plaintiff’s complaint. The ninth paragraph of the complaint alleges that the pool "collapsed and caved in causing considerable damage to plaintiff’s property thereby decreasing the value of said lot and premises”. The bill of particulars which had been served by plaintiff in his prior causes of action set forth loss of value in the amount of $5,000, $2,385.81 as the cost of repairs, and $1,500 for restorative landscaping. While this bill has no official status in the present action, there is no reason not to assume that similar elements of damage are claimed in the present case. So much of the above as represents the value of the pool as well as the cost of repairing the pool should not be recoverable, for that constitutes damage to the product itself which is not actionable, as we have noted, under strict products liability theory. However, insofar as plaintiff’s complaint alleges damages due to actual physical injury to his land, he has clearly made out a claim cognizable under the strict products liability doctrine.
The order should be reversed.
Sweeney and Koreman, JJ., concur with Herlihy, P. J.; Greenblott and Reynolds, JJ., dissent and vote to reverse in an opinion by Greenblott, J.
Order affirmed, with costs.