Rome City School District v. New York Telephone Co.

Order unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying the motion of defendants American Telephone and Telegraph Company and AT&T Information Systems (AT&T) for summary judgment dismissing the first, fifth, sixth and eighth causes of action in plaintiff’s complaint against them. Plaintiff had no contract with AT&T and thus the breach of contract cause of action should have been dismissed. The cause of action alleging breach of implied warranties also should have been dismissed because it seeks recovery for economic loss and the parties lack the requisite privity for such cause of action (see, Miller v General Motors Corp., 99 AD2d 454, affd 64 NY2d 1081; Jaffee Assocs. v Bilsco Auto Serv., 89 AD2d 785, affd 58 NY2d 993; Butler v Caldwell & Cook, 122 AD2d 559, 560). The causes of action alleging breach of express warranties and fraudulent misrepresentations should have been dismissed. It is undisputed that only one of the four persons alleged by plaintiff to have made such oral warranties or misrepresentations ever worked for AT&T, and it is undisputed that that person had no contact with plaintiff until after the contract was executed. Furthermore, plaintiff has not offered any evidence that the alleged written express warranties in certain proposals and pamphlets emanated from AT&T. (Appeal from Order of Supreme Court, Oneida County, Tenney, J. — Summary Judgment.) Present — Denman, P. J., Pine, Balio, Fallon and Davis, JJ.