Levin v. Hoffman Fuel Co.

Asch, J.,

dissents in a memorandum as follows: In my opinion the order dismissing the complaint should be reversed. Plaintiffs claim that as a result of a breach of contract by defendant, under which the latter was obligated to monitor the fuel requirements of, and to make automatic fuel deliveries to, the plaintiffs’ house in Carmel, New York, the water in the boiler, pipes and radiators froze, causing the boiler, pipes and radiators to burst, and the entire system had to be replaced. Special Term held that the contract between the parties was one for the sale of goods only, governed by the four-year Statute of Limitations under section 2-725 of. the New York Uniform Commercial Code, rather than the six-year Statute of Limitations set out in CPLR 213 which would apply if the contract were predominantly one for services. The court briefly reviewed the allegations of the complaint and the contentions of the parties with respect to the contract. It concluded that the contract simply “called for the sale of heating oil and the automatic delivery service was merely incidental thereto.” It is-not disputed that if the contract were predominantly one for the provision of services, the six-year statute governs and the motion to dismiss the complaint should have been denied. (See Dynamics Corp. of Amer. v International Harvester Co., 429 F Supp 341.) The New York rule is well settled that in deciding whether a contract is for the sale of goods or for services, the court must look to “the main objective sought to be accomplished by the contracting parties”. (Ben Constr. Corp. v Ventre, 23 AD2d 44, 45; see, also, Perlmutter v Beth David Hosp., 308 NY 100; Schenectady Steel Co. v Trimpoli Gen. Constr. Co., 43 AD2d 234, affd 34 NY2d 939.) In applying this test, the transaction must be examined in its entirety to determine its essential nature. Thus, in Ben Constr. Corp. v Ventre (supra), the court held that the contract for the installation of the pool was one for services, not for the sale of goods, in spite of the fact that defendant had contracted for a finished product, a swimming pool. Similarly, in Perlmutter v Beth David Hosp. (supra), the Court of Appeals decided that even though the plaintiff characterized her claim, arising from contaminated blood supplied to her during a hospital stay, as one for the sale of goods, the dominant purpose of the contract was the provision for medical care and services. As a result, her claim was essentially based upon services, not a sale. (308 NY, at pp 104,106.) Moreover, if there is a factual question as to whether a contract is in essence one for services or one for the sale of goods, it is appropriate to hold a hearing on the question, not to dismiss the complaint" on motion. See Back O’Beyond, Inc. v Telephonic *642Enterprises (76 AD2d 897), in which the court held that it was unclear from the record whether a contract for the sale and installation of a security fire alarm system was in essence one for services, and, therefore, governed by the six-year statute, or one for the sale of goods subject to the four-year statute. Accordingly, it reversed an order of the Supreme Court dismissing the complaint as barred by the Uniform Commercial Code’s four-year statute, and remanded the matter for immediate trial of that issue. (See, also, Farm Automation Corp. v Senter, 84 AD2d 757.) Special Term has examined the critical issue herein as if it were simply a question of law. However, there are a number of factual questions raised, the resolution of which may establish that the contract was intended by the parties to be primarily one for services. The cases relied on by the defendant are inapposite because the contracts there involved are not ones for multiple purposes. It is certainly possible the contract between the parties herein was essentially a contract for services, governed by the six-year Statute of Limitations. (See Ben. Constr. Corp. v Ventre, supra, at p 45; Dynamics Corp. of Amer. v International Harvester Co., supra, at p 346.) On the basis of these cases, Special Term should have found that it was unclear from the record whether the contract was principally one for services or one for the sale of goods only. Accordingly, it should have ordered a hearing rather than dismiss the complaint (see CPLR 3211, subd [c]).