The claimant is obliged to admit this well-established limitation, but argues that the sale contract is ambiguous, because the provision in it, and in the notice of sale and terms of sale, which form part of it, providing for the sale of “ all the title of the State of New York,” is inconsistent with, and in derogation .of, the statute regulating the sale, and the resolution of the commissioners of the land office to which reference has been made. We will discuss later that alleged inconsistency and contradiction, but at this point it is sufficient to point out that, assuming it to exist, it does not constitute an ambiguity permitting <mask> in explanation. As is held in a case cited by the claimant, “An ambiguity, in order to authorize parol *207evidence, must relate to a subject treated of in the paper and must arise out of words used in treating that subject. ’’ Trustees of Southampton v. Jessup, 173 N. Y. 84, 89, 90. There is nothing ambiguous about the phrase “ all the title of the State of New York.” The claimant, in his brief, himself contends that it has a very exact and definite meaning. Parol evidence, to alter or change it, is of no avail.


In cases where a writing or memorandum relating to the sale or lease of real estate is attacked under the Statute of Frauds for insufficiency in respect to the identification of the subject matter, the general rule is that while <mask> may not be admitted as to the terms of the agreement, it nevertheless is receivable to show extrinsic circumstances relating to the situation of the parties in respect to the land, so as to enable the court definitely to ascertain the property to which the contract referred. (Miller v. Tuck, 95 App. Div. 134, 135.) Thus, there are numerous authorities which hold that where real property is vaguely or inadequately described in the writing but nevertheless susceptible of ascertainment, parol evidence may be received in order to indicate the specific parcel intended to be conveyed. (Miller v. Tuck, supra; Crandall v. Smith, 172 Misc. 92 and cases therein severally cited.) However, in the case at bar it is urged by defendant that in the absence of the plot plan the contract is completely lacking and silent as to the premises intended to be leased and to permit the subject matter to be furnished by parol or extrinsic evidence would open the door to the very evils the Statute of Frauds was *746designed to avoid. On the other hand, the plaintiff argues that the plot plan, which was in existence and in the possession of the defendant when the contract was executed, clearly refers to the subject matter of the transaction and should be read together with the signed instrument in spelling out the intent of the parties.


Establishment of Lost Will Revoking a Former Will.—<mask> of the contents of a will subsequent to the one produced for probate, which subsequent will has been lost, destroyed, or canceled, is admissible to establish the revocation of the will produced: Lane v. Hill, 68 N. H. 275, 73 Am. St. Rep. 591, 44 Atl. 393. Evidence of the contents of an alleged lost will relied upon as a revocation of a prior one, offered for probate, is inadmissible in the absence of evidence that it was executed in the presence of two witnesses as required by the statute: McKenna v. McMichael, 189 Pa. 440, 42 Atl. 14. And it must also be shown that the lost will either in express terms revoked the former will or that its provisions in devising the property were so far inconsistent with the former will that it would operate as a revocation: Caeman v. Van Harke, 33 Kan. 333, 6 Pac. 620. The evidence to oppose the probate of a will may consist in the mere proof of a revocatory clause in a later will which has been lost or destroyed, even though the proof as to the entire contents be insxiffieient to admit the lost will to probate: In re Cunningham, 38 Minn. 169, 8 Am. St. Rep. 650, 36 N. W. 269; Williams v. Miles, 68 Neb. 463, 110 Am. St. Rep. 431, 94 N. W. 705, 96 N. W. 151. Where a will offered for probate was claimed to have been revoked by a later will drawn by the same attorney, testimony of the attorney who drew the will to the effect that the testatrix came to his office to have him draw the second will, whereby she desired to revoke the former will, and make certain changes in it, but, at the same time, did not desire to allow her husband, in whose hands the former will was to know of such changes, that she was anxious to have witnesses to the will, who would not speak of the fact of having witnessed the will, and that he remembered the date of the will, and the substance of the provisions, together with the testimony of the other witness to the will, a physician, who had offices next to those of the attorney, to the fact of execution, was held sufficient to prove the lost will: In re Bell’s Estate, 13 S. D. 475, 83 N. W. 566.


The <mask> rule attaches legal consequences to an integrated contract – a contract that is the only agreement between the parties on a specific topic. See Restatement (Second) Contracts § 209(1) (“An integrated agreement is a writing or writings constituting a final expression of one or more terms of an agreement.”). To demonstrate integration, parties commonly include an integration clause in a contract. Such a clause typically states that the contract contains the final expression of all the terms of the parties’ agreement and that it supersedes all prior agreements on the subject matter. For integrated contracts, the parol evidence rule prevents the use of extrinsic evidence to add to or modify the contract’s terms:


“It is a well-settled rule, that seems not to stand in need of much proof or illustration, for it runs through all the books, from Cheyney's Case (5 Co. 68) down to this day, that <mask> cannot be admitted to supply or contradict, enlarge or vary, the words of a wil', nor to explain the intention of the testator, except in two specified cases; 1. Where there is a latent ambiguity, arising dehors the will, as to the person or subject meant to be described; and, 2. To rebut a resulting trust. * * * (Citing cases.) * * * If there be a mistake in the name of the legatee, or there be two legatees of the same name, or if the testator bequeath a particular chattel, and there be two or more of the same description, or if, from any other misdescription of the estate, or of the person, there arises a latent ambiguity, it may and must be explained by parol proof, or the will would fall to the ground for uncertainty. When a latent ambiguity is produced, according to the language of the courts, (Lord Thurlow, in 1 Ves. jun. 259, 260, 415, and Lord Kenyon, in 7 Term Rep. 148) in the only way in which it can be produced, viz., by parol proof, it must be dissolved in the same way; and there is no case for admitting parol evidence to show the intention upon a latent ambiguity on the face of the will. They are all cases of latent ambiguity; and the objection to supply the imperfection of a written will, by the testimony of witnesses, is founded on the soundest principles of law and policy. ‘ It would be full of great inconvenience/ say the justices, in Cheyney’s case, 1 that none should know, by the written words of a will, what construction to make, or advice to give, but that it should be controlled by collateral averments out of the will.’ And if collateral averments be admitted, to use the words of Sir Matthew Hale, in Fry and Wife v. Porter (1 Mod. 310) ‘ how can there -be any certainty? a will may be any thing, every thing, nothing. The statute appointed the will to be in writing, to make a certainty; and shall we admit collateral averments and proofs, and make it utterly uncertain? ’ In a still later case, (3 P. Wms. 354) Lord Talbot observed, that if we admit parol proof, ‘ then the witnesses, and not the testator, would make the will; ’ and he spoke with equal decision in the case of Brown v. Selwin (Cases temp. Talbot, 240) though the parol proof, in that case, would have left no doubt of the intention of the testator being contrary to the legal operation of the will. * * *


It appears from the papers before this court that ambiguity does exist as to certain language contained in paragraph 12 of the agreement here involved. This agreement on its face is much more than a mere “sublease”. Under the circumstances disclosed by the moving papers, <mask> adduced upon a trial, subject to cross-examination by counsel, would be admissible to interpret the meaning of the ambiguous phrase here involved and the intent of the contracting parties with respect thereto. In the interests of justice, therefore, the issues created by such ambiguity should not be determined solely on the basis of affidavits submitted on motions for summary judgment (Piedmont Hotel Co. v. Nettleton Co., 263 N. Y. 25, 30; Italian Benevolent Inst. v. Elaine Co., 240 App. Div. 196,198). These issues can best be resolved by a trial.


The intention of the maker, then, is the controlling consideration in construing an instrument of doubtful testamentary character. This intention usually is to be gathered from the terms of the entire instrument, construed together, and always so when its provisions are plain and clear, but extrinsic evidence may be received to enable the court to place itself in the position of the parties in order to interpret doubtful and ambiguous provisions. The intention may be ascertained, not only from the instrument itself, but from all the facts and circumstances surrounding the parties and attending the execution of the instrument: Rice v. Rice, 68 Ala. 216; Tuttle v. Raish (Iowa), 90 N. W. 66; Beebe v. McKenzie, 19 Or. 296, 24 Pac. 236; Kisecker's Estate, 190 Pa. 476, 42 Atl. 886; Parker v. Stephens (Tex. Civ. App.), 39 S. W. 164. <mask> may be received to aid in arriving at the intention of the maker and the character of the instrument, when such intention is not clearly and satisfactorily expressed in the writing itself: Clarke v. Ransom, 50 Cal. 595; Kelleher v. Kernan, 60 Md. 440; Egerton v. Carr, 94 *12N. C. 648, 55 Am. Rep. 630; Witherspoon v. Witherspoon, 2 McCord, 520. Such evidence is admissible to show that the maker did not, at the time of signing an instrument, understand it was a will or intend that it should operate as such: Barker v. Comins, 110 Mass. 477, 488. Testimony of his conversation at that time may be received to show his intention: Wareham v. Seller, 9 Gill & J. 98.


During the 1980s a dispute arose over the location of the parties’ rear lines with plaintiff contending that he had adversely possessed a strip of land beyond his rear boundary. Plaintiff commenced this action in 1987. Thereafter in 1989, deciding that ambiguities in defendants’ deed permitted the conclusion that the parcels were not contiguous and that certain <mask> supported a contention that defendants’ rear or westerly line was not straight but concave, plaintiff procured a quitclaim deed for a small parcel allegedly being the land between the two parcels. The description of the new parcel included a portion running underneath defendants’ home. Plaintiff amended his complaint to claim legal title to the land described in the 1989 quitclaim deed.


misrepresentations of its student enrollment projections. But it does not proffer that evidence for the purpose prohibited by the <mask> rule: to nullify, vary, or supplement a contractual term. See Yocca, 854 A.2d at 436–37. Rather, SDM accepts the terms of the Management Agreement as they are – in particular, those related to its obligations to make investments and provide dining services – and it seeks to use the extrinsic evidence to prove that Drexel fraudulently induced it to enter into the Management Agreement. Nor does the Management Agreement contain a fraud-insulating provision. It does not disclaim reliance on precontractual representations, and it does not state that representations in the Management Agreement are exclusive or supersede all prior representations. Thus, here, the parol evidence rule does not prevent the use of extrinsic evidence to prove precontractual misrepresentations. See Youndt, 868 A.2d at 546.7


There is nothing in the written memorandum which states that the more formal agreement was to be subject to the approval of defendant’s legal adviser and this defense in the light of its clear violation of the <mask> rule must fall. The defense that plaintiff failed to perform all the conditions on her part to be performed is disproved by the proof from the broker, whose veracity the defendant also sponsors. As to defendant’s third defense, the law is well settled that the usual obligation to minimize damages" has no application to a contract of leasing (Gray v. Kaufman Dairy & Ice Cream Co., 9 App. Div. 115, 119; Sancourt Realty Corp. v. Dowling, 220 App. Div. 660). However, since there is no denial that plaintiff occupied the premises with her family and thus may have received a beneficial use therefrom, the question of damages becomes an issue.


Oral testimony as to statements of the testator to the draftsmen of his will were received subject to a motion to strike. This testimony referred to statements made at the time of the will’s preparation and statements made sometime thereafter. The motion to strike this testimony is granted. In the construction of a will the intention of a testator is to be gathered from the will, read as a whole (Matter of Evans, 234 N. Y. 42; Matter of Schliemann, 259 N. Y. 497) and when the judicial conscience is in doubt as to the construction of a particular portion of the will, the circumstances surrounding the testator at the time of the paper’s execution may be considered (Matter of Smith, 254 N. Y. 283; Matter of Neil, 238 N. Y. 138; Collister v. Fassitt, 163 N. Y. 281; Bradhurst v. Field, 135 N. Y. 564) and inquiry may be made as to the testator’s fortune and family (Matter of Title Guar. & Trust Co., 195 N. Y. 339). <mask> is not admissible to contradict the language of a will or to provide an intention that has been omitted from the instrument (Matter of Smith, supra; Dwight v. Fancher, 245 N. Y. 71; Brown v. Quintard, 177 N. Y. 75; Matter of Nelson, 268 N. Y. 255; Matter of Tamargo, 220 N. Y. 225; Matter of Gautier, 3 N Y 2d 502, 510.) Testimony may be resorted to in the event of an ambiguity in the words of the will but an expression of intention made after the execution of the instrument may not be availed of in a search for testamentary purposes (Morris v. Sickly, 133 N. Y. 456).


In Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 9 Cal.Rptr.3d 97, 83 P.3d 497, the trial court granted judgment on the pleadings for the defendant in a malicious prosecution case, holding that dismissal of the underlying action based on the <mask> rule was not a favorable termination. The Supreme Court reversed, beginning its analysis as follows: "To determine 'whether there was a favorable termination,' we 'look at the judgment as a whole in the prior action ....' [Citation.] 'It is not essential to maintenance of an action for malicious prosecution that the prior proceeding was favorably terminated following trial on the merits.' [Citation.] Rather, *47'[i]n order for the termination of a lawsuit to be considered favorable to the malicious prosecution plaintiff, the termination must reflect the merits of the action and the plaintiff's innocence of the misconduct alleged in the lawsuit.' [Citation.]" ( Id. at pp. 341-342, 9 Cal.Rptr.3d 97, 83 P.3d 497.)


It is a well settled rule which runs through all the books that <mask> cannot be admitted to supply or contradict, enlarge or vary the words of a will, or to explain the intention o£ a testator, except in two cases: 1, Where there is a latent ambiguity, arising dehors the will as to a person or subject meant to he described; and, 2, To rebut a resulting trust. It is conceded by counsel that this case does not come within either exception.


While there is the obvious problem in permitting <mask> to establish an intention to revoke (see, Matter of Stern, 189 Misc 639) where the statute provides that there is no revocation as a matter of law, it may be argued that where the will itself states that a bequest to children is limited because of ill feelings towards them, the after-born should receive an intestate share. However, this is a matter for determination by the Legislature. The courts must give effect to legislation as it is written not as they or others believe it should be written (Allen v Minskoff 38 NY2d 506; Matter of Rosenthal v Hartnett, 36 NY2d 269).


As to the alleged breach of contract, and the issue of whether defendant did or did not work jointly on the AYW case, it is settled that “when interpreting a contract, the court should ar*403rive at a construction which will give fair meaning to all of the language employed by the parties, to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized.” (Matter of John E. Andrus Mem. Home v DeBuono, 260 AD2d 635, 636 [2d Dept 1999]; see also WWW Assoc. v Giancontieri, 77 NY2d 157, 162 [1990] [“when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms”; court held that <mask> cannot be used to add to or vary the writing that is ambiguous]; see also T.M. Bier & Assoc., Inc. v Piraino, 16 AD3d 578, 579 [2d Dept 2005] [in interpreting a contract one provision should not be left without force or effect].)


In the ease before us, the defendants’ letter was simply a proposal that the plaintiff should accept an order for fifty warps instead of one hundred, at the price of seventy cents. This was the exact language used, and, the existence of a contract or not, depended on the acceptance of the order upon the terms proposed. The acceptance was by letter, but the contents of this letter, as well as the fact that it was mailed to the defendants, was established by <mask>. No exception was taken to the proof, and as the letter is presumed to have reached the defendants in due course of mail, and might have been produced by them before the referee, it may be that this was sufficient proof of an acceptance in writing. (Watts v. Ainsworth, 6 Law T. N. S. 252.) But if there be doubt on this point, there was sufficient evidence of a delivery and acceptance of a part of the warps, to take the case out of the operation of the statute.


An oral agreement that the contract is cancelable would contradict the terms of the contract providing for the irrevocability of the offer, and hence, is inadmissible under the <mask> rule (Mitchill v. Lath, 247 N. Y. 377; Halloran v. N. & C. Contr. Co., 249, N. Y. 381; Ball v. Grady, 267 N. Y. 470; B. H. Krueger, Inc., v. Hearn Dept. Stores, 265 App. Div. 791).


Second. That a fair interpretation of the description used in the deed of the defendant to the plaintiff, in the light of the surrounding circumstances, and the <mask> that was given, would tend to the conclusion, as a question of fact, that the defendant did not assume to convey and did not intend to convey any portion of the Taylor lot to the plaintiff.


The appellant claims that <mask> to establish the above facts was inadmissible, for the reason that it contradicted and was received to vary the terms of a written, contract by the note. . We do not think that rule applies. The contract of the sale or release of plaintiff’s interest was by parol. That is the contract which would by its terms determine who was to pay the plaintiff. • The note would not necessarily, and parol evidence of what the terms of that agreement were was, properly received. ■


The objections taken to certain rulings of the justice upon questions of evidence have no merit. Tlie award was a collateral matter, and <mask> of its contents was properly received. The question put to the witness Ellis, one of the umpires, whether he had a right to examine the buggy, was wholly immaterial, and his answer, “ I suppose so,” though irrelevant and improper, did no possible harm.


Under the statutes of this State (2 E. S., 64, § 42) a will devising realty may be altered or revoked in the same way that a will bequeathing personalty may be altered or revoked. Since the passage of this statute, and since 1 Victoria (chap. 26), it has been so generally held that it may be regarded as settled in this State and in England, that <mask> of the satisfaction of a legacy may be given without violating those statutes, because it is not proving a revocation or alteration of the will, nor is it in contradiction of the testator’s declared intern ion, but is evidence of a subsequent transaction, showing that the testator has partly carried his will into effect in his lifetime. (Langdon v. Astor's Exrs., 16 N. Y., 9, 39, 49; Kirk v. Eddowes, 3 Hare, 508; 2 Whar. Ev., § 1007; 2 Taylor’s Ev. [6th ed.], 998, 1048; 1 Greenl. Ev., § 296; Abb. Tr. Ev., 148; Gresley’s Ev., 297; 2 Will. Exrs. [6th Am. ed.], 1443; 2 Redf. Wills, 442.)


Applying this legal theory to her vehicle, Gutierrez argues the Hyundai was not merchantable when sold to her because "it had the unresolved and *1243undisclosed stop lamp switch issue" identified in the safety recall. In Gutierrez's view, this breach of the <mask> of merchantability occurred at the time of sale and, as a result, the cause of action does not depend on the timing of her discovery of (1) the safety recall or (2) CarMax's failure to fix the vehicle as specified in the recall.


There is no estoppel in the case, and no <mask> that the face of the judgments was the amount due. The assignment from Mrs. Walrath was without recourse. All parties dealing with the judgments were bound to take notice of their contents, and of the contents of the judgment rolls on which the judgments were based. Such parties were thus advised of the true amount for which the judgments could be enforced, and the plaintiff especially, as a party to the judgments, was bound to know that his payment of them would give him no right of contribution against the defendant.


The primary action was commenced by the Town of Ogden to compel compliance by a contractor (Howarth) with certain subdivision development and construction regulations. Howarth commenced a third-party action against Hart, the owner of one of the homes in the subdivision, on the ground that if the subdivision regulations had not been complied with, it was by reason of certain alleged acts by Hart. Hart counterclaimed against Howarth, his builder-vendor, on the ground (1) that he (Hart) was a third-party beneficiary of a contract between Howarth and the town to properly develop the subdivision in accordance with town regulations — a contract allegedly breached by Howarth; (2) that Howarth had fraudulently induced Hart to execute the purchase contract by oral representations regarding the quality of workmanship and materials in Hart’s home — oral representations allegedly breached by Howarth; and (3) that Howarth allegedly breached an <mask> regarding the quality of workmanship and materials in Hart’s home.


Where an item of food or drink intended for human consumption is sold, an <mask> is imposed on the manufacturer that the item is fit for human consumption and free from any harmful or unwholesome substances, when it leaves the manufacturer’s control. (UCC 2-314; Hohn v South Shore Servs., 141 AD2d 504 [2d Dept 1988]; 86 NY Jur 2d, Products Liability, § 129, at 517; Annotation, Liability for Injury or Death Allegedly Caused by Foreign Substance in Beverage, 90 ALR4th 12, § 2 [a], at 22; see also, England v Sanford, 167 AD2d 147 [1st Dept 1990], affd 78 NY2d 928 [1991].) In order to recover, however, the injured consumer must prove that the product was actually defective or unwholesome, and that the defect or unwholesome condition existed at the time the product left the possession or control of the manufacturer. (Tordella v RJR Nabisco, Inc., 178 AD2d 737 [3d Dept 1991]; Kotiadis v Gristede Bros., 20 AD2d 689, 690 [1st Dept 1964].) In the case of food or drink sold in a sealed container, this burden may be satisfied by proof that there was no opportunity for tampering with the sealed container, or by proof that there was no such tampering in the given case. (See, supra.)


Warranties of merchantability and fitness for use are implied by sections 2-314 and 2-315 of the Uniform Commercial Code, unless excluded or modified pursuant to section 2-316 of the Uniform Commercial Code where, as here, the exact exclusionary words of subdivision (2) of section 2-316 of the Uniform Commercial Code are not used, the exclusion may nevertheless be accomplished by "language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no <mask>.” (Uniform Commercial Code, § 2-316, subd [3] , par [a].) Or, when the buyer "has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him”. (Uniform Commercial Code, § 2-316, subd [3], par [b].) Or, when the exclusion results from "a course of dealing or course of performance or usage of trade.” (Uniform Commercial Code, § 2-316, subd [3], par [c].)


It is not necessary, therefore, for the court to consider whether defendant Fordham is liable under the theories of strict liability in tort or <mask> of merchantability under section 2-314 of the Uniform Commercial Code. (Cf. Peterson v Backrodt Chevrolet Co., 61 Ill 2d 17 and Realmuto *985v Straub Motors, 65 NJ 336, with Cintrome v Hertz Truck Leasing & Rental Serv., 45 NJ 434, and Cornelius v Bay Motors, 258 Ore 564. Cf. Swensson v New York, Albany Desp. Co., 309 NY 497. See, generally, 2 Frumer and Friedman, Products Liability, § 16A[4][b][iv]; § 18.03[3]; Strict Liability Not Applicable to Used Car Dealers Absent Actual Creation of Defect, 25 De Paul L Rev 574; Torts — Products Liability— Strict Liability in Tort Applied to Seller of Used Automobiles, 42 Tenn L Rev 426; Products Liability: Manufacturers’ Products Liability as It Relates to Used Automobile Dealers, 31 Okla L Rev 736. On the question of the application of implied warranties to used car dealers, see, generally, Official Comment, McKinney’s Cons Laws of NY, Book 62 Vi, Uniform Commercial Code, § 2-314, p 259; Prosser, Torts [4th ed], § 100; 2 Frumer and Friedman, § 16A [4] [5] [i].)


Under that doctrine an <mask> of habitability is read into leases and the tenant is not required to move before he can obtain an abatement of rent (Morbeth Realty Corp. v Velez, 73 Misc 2d 996; Amanuensis Ltd. v Brown, 65 Misc 2d 15; 57 E. 54 Realty Corp., v Gay Nineties Realty Corp., 71 Misc 2d 353; Jackson v Rivera, 65 Misc 2d 468; Mannie Joseph, Inc. v Stewart, 71 Misc 2d 160; Morbeth Realty Corp. v Rosenshine, 67 Misc 2d 325; Steinberg v Carreras, 74 Misc 2d 32, revd on other grounds 77 Misc 2d 774). This doctrine recognizes that apartment renters, unlike farmers, are not seeking the land on which the apartment is located but rather, "they seek a well known package of goods and services —a package which includes not merely walls and ceilings, but also adequate heat, light and ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation, and proper maintenance.” (Javins v First Nat. Realty Corp., 428d 1071, 1074.) The law of contracts permits an implied warranty to be read into oral and written apartment leases that the apartment is safe, sanitary and fit for human habitation. The laws in force at the time that such lease agreements are entered into become a part of such contracts (Dolman v United States Trust Co. of N. Y, 2 NY2d 110). When a landlord fails to perform his obligations under the lease contract by flagrantly and persistently violating the law, as is the case here, I find that there is such a substantial breach of the landlord’s obligation under the contract that it serves to discharge the tenant’s obligation to pay rent.


In the present case the cause of action arose after this section took effect. (Pers. Prop. Law, § 96.) Section 96 provides that “ There is no <mask> or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: 1. Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.”


“The second inquiry is whether the defendant gave an <mask> as to the glass as well as to the drink in it. [The plaintiff] was the ultimate consumer of the drink, but the glass remained the property of defendant. In Shaffer v. Victoria Station, Inc., 91 Wash.2d 295, 588 P.2d 233 (1978) the Supreme Court of Washington was faced with a similar situation. In that case plaintiff ordered a glass of wine and the glass broke in his hand causing permanent injury. The state of Washington adopted the identical provision from the Uniform Commercial Code regarding implied warranties as did the state of New Jersey.


Williston quotes (rev. ed., vol. 1, § 239b) from the Georgia decision of Roebling’s Sons Co. v. Southern Power Co. (142 Ga. 464, 468) as follows: “ Suppose that a purchaser should order from a manufacturer a table warranted to be of certain dimensions and with certain ornamentations, can it be contended that this would exclude an <mask> that the table should be properly put together, and that such a contract would be fulfilled by supplying a table with the dimensions and ornamentations specified, although it might be constructed of such inferior material as to fall down as soon as the purchaser should place a dictionary upon it and turn to the word ‘ warranty ’? ”


Appellant raises two points on appeal. In Point I, Appellant argues the circuit court erred in entering judgment in favor of Ms. Tolliver on her claim for breach of <mask> of habitability because the claim is barred by the exculpatory clause in the 2017 lease. In Point II, Appellant argues the circuit court erred in entering judgment against it on its counterclaim because Appellant proffered evidence to support a prima facie breach of contract claim.


A monumental trilogy of cases has revolutionized this area of the law. (Greenberg v. Lorenz, 9 N Y 2d 195; Randy Knitwear v. American Cyanamid Co., 11 N Y 2d 5; Goldberg v. Kollsman Instrument Co., 12 N Y 2d 432.) The Kollsman case is particularly pertinent. There the Court of Appeals held that a suit in <mask> by an airline passenger was main*555tainable against the assembler and manufacturer of an allegedly defective altimeter. At pages 434 to 435 of its opinion the court said that: ‘ ‘ The question now to be answered is: does a manufacturer’s implied warranty of fitness of his product for its contemplated use run in favor of all its intended users, despite lack of privity of contract? ” It answered its own query when it said (pp. 436-437): “ that, at least where an article is of such a character that when used for the purpose for which it is made it is likely to be a source of danger to several or many people if not properly designed and fashioned, the manufacturer as well as the vendor is liable, for breach of law-implied warranties, to the persons whose use is contemplated.”


My original opinion in this case makes it crystal clear that the cause of plaintiff’s injury Avas the original and basic defect in the manufacture of the nail. Applying the test set forth in Natale it is manifest that the essential cause of the accident was the manufacturer’s breach of <mask> of fitness for *1058use. The characterization of Wi'lmod’s failure to inspect the nail as “ active ” negligence must be read in context. It was not a finding of “ active ” negligence in the sense that what Wilmod did was the essential cause of the occurrence but rather that vis-a-vis plaintiff and defendants Macrose its negligence was “ as a matter of law, that of a manufacturer ” because it did not on the box of nails which it sold indicate the name of the manufacturer but stated that the nails were ‘ ‘ manufactured in Japan for Wilmod, Oo., NYC ”. The opinion makes it clear that it was that representation made to persons who purchased the nails from or through it that caused it to be considered a manufacturer so far as they were concerned.


. “The doctrine of <mask> of habitability has been the accepted policy of many Judges of the Civil Court of the City of New York for a number of years” (Groner v Lakeview Mgt. Corp., 83 Misc 2d 932; see, e.g., Jackson v Rivera, 65 Misc 2d 468; Morbeth Realty Corp. v Velez, 73 Misc 2d 996; Steinberg v Carreras, 74 Misc 2d 32).


Plaintiff seeks to recover against Wilmod on the theory of breach of warranty, both express and implied. Since Wilmod did not advertise the product or in any way make any affirmative statements regarding its quality, there can be no express warranty; nor do the facts establish a warranty of fitness for a particular use. The fundamental question, therefore, is whether a supplier in the position of Wilmod is liable to a consumer with whom it is not in privity of contract for a breach of <mask> of merchantability.


The defendant contended (as here) that the <mask> created by the statute contemplates the existence of a warranty running only from an immediate seller to an immediate buyer, and that therefore the wife, who was not the purchaser, did not have privity of contract with the retailer; furthermore, that her husband, the purchaser, did not have privity of contract with the defendant manufacturer. Coincidentally, the court discussed the right of an infant to recover for warranty where the parent makes a food purchase and also elaborated upon the intention of the Legislature:


Here, the instrument between the parties contained more than a mere disclaimer of express warranty and of <mask>, other than of merchantability and fitness. There was an express provision that the written instrument contained the entire agreement between the parties. That broad general statement was immediately followed and amplified by particularization that “ there are no promises, terms, conditions, or warranties other than those contained herein ”. (See par. 10 of instrument dated June 12, 1969, quoted, infra.) The same instruments, in large bold print set forth on the front page, admonished the buyer not to sign the instrument before it was read. (See par. “ Notice to The Buyer” quoted above.) Finally, while subject to no legal requirement the disclaimer of express warranties and of implied warranties, other than of merchantability and fitness were mentioned by name and were set forth conspicuously in a separate space on the face sheet of the agreement. (See disclaimer of warranty clause, front page agreement dated June 12,1969, quoted, infra.)


The general rule is well settled, and is unquestioned, that in the sale of personal property there is an <mask> of title. But it is claimed, on the part of the plaintiffs in error, that such rule is not applicable where the vendor is not in possession of the chattel sold, at the time of the sale. Upon this point there has been some conflict of opinion; and the question not having been judicially settled, in this state, it is necessary to give it a careful examination.


*1034Here the contract of sale contemplated that the reactor be shipped over some distance to the purchaser. Under these circumstances, the sale required that the seller package the goods for shipment, thereby creating an <mask> that the goods be adequately packaged (Uniform Commercial Code, § 2-314, subd. [2], par. [e]). Furthermore, the plaintiff relied upon the seller’s skill to prepare the reactor for shipment, hence the seller warranted that the reactor, including the bracing, was suitable and adequate for the purpose of shipment (Uniform Commercial Code, § 2-315; Fraley v. Ford, 81 Ariz. 268). Nor was the shipper’s obligation to properly package limited to the implied warranty created by the Uniform Commercial Code. When the shipper sold the reactor for shipment to the plaintiff, the shipper assumed an implied contractual duty to properly prepare it for shipment. Its liability for a breach of this duty is the same as though it had committed a breach of warranty (United States v. Loveys Co., 174 F. Supp. 44, 47).


. The three remaining causes of action are founded on the alleged negligence of the landlord and the roofer, Stanley Werling. The first cause of action is against the landlord for negligent maintenance of the roof. The second cause of action is against the roofer for the negligent repair of the roof, and the third cause of action is against both defendants for the negligent repairs. The fourth and final cause of action is against the landlord alone and is founded on the breach of the <mask> of habitability.


‘ ‘ There seems after all to be little if any difference between a liability based upon an <mask> and a positive duty *46based upon public policy. Both operate irrespective of negligence, and the same facts will support either. Peculiar as it may seem, however, the courts require privity for recovery in cases resting on the theory of warranty but not in those resting on the theory of tort liability. This distinction is questionable ’ ’. (7 Calif. L. Bev. 360, 364.)


In Stuart v Crestview Mut. Water Co. (34 Cal App 3d 802, 811-812) the California Court of Appeals held: "We cannot, however, find any basis for holding the engineers on a strict liability theory. They rendered a professional service and are in no sense analogous to manufacturers who place products on the market and who are, therefore, in the best position to spread the cost of injuries resulting from defective products. [Citations omitted.] A relatively recent decision, Allied Properties v. John A. Blume & Associates, 25 Cal.App.3d 848, 855-856 [102 Cal.Rptr. 259] sums up the present state of our law with respect to the liability of professionals: '[T]he well settled rule in California is that where the primary objective of a transaction is to obtain services, the doctrines of <mask> and strict liability do not apply [Citation omitted.] As originally stated in Gagne v. Bertran, 43 Cal.2d 481 [275 P.2d 15], former Chief Justice Traynor, in holding there was no strict implied warranty liability on the part of a test hole driller, stated at page 487: "He was not a seller of property who obligated himself as part of his bargain to convey property in the condition represented. The amount of his fee and the fact that he was paid by the hour also indicate that he was selling service and not insurance. Thus the general rule is applicable and those who sell their services for the guidance of others in their economic, financial, and personal affairs are not liable in the absence of negligence or intentional misconduct.”


It may be true that the Court of Appeals 1 ‘ has dispensed, without qualification, with the court-made traditional requirement of privity” (Williams v. Union Carbide Corp., 17 A D 2d 661, 662) in actions for breach of warranty. It is not yet the law, however, that one distributor may maintain an action for breach of express or <mask> against another distributor not in privity with the first who neither manufactured the article in question nor advertised it nor made any representations whatsoever with respect to it, nor even marked it with his name or trade-mark. Moreover, there is no reason to hold that justice requires such a rule.


Edward J. Sperzel, J. This action, as it relates to defendant Smithtown Ford, Inc. (Smithtown), seeks damages in connection with plaintiff’s purchase of a motor vehicle from Smithtown based upon breach of <mask> and revocation of acceptance pursuant to the Magnuson-Moss Warranty Federal Trade Commission Improvement Act (15 USC § 2301 et seq. [Magnuson-Moss Act]), recovery of attorney’s fees under said Act, improper delivery pursuant to section 2-601 (a) of the Uniform Commercial Code, breach of written warranty pursuant to section 198-b of the General Business Law (Used Car Lemon Law) and breach of the warranty of serviceability pursuant to section 417 of the Vehicle and Traffic Law.


The award of damages to Abuhamda, however, is not supported by authority. There is no evidence that appellant’s misrepresentation that the title was “free and clear” was other than innocent or that appellant was negligent. The risk of arrest and detention for possession of a stolen vehicle is not a risk of injury to person or property within the doctrine of strict product liability. Nor is the award authorized as one of “consequential damages” under the Uniform Commercial Code (§ 2-714 [3]; § 2-715 [2] [b]). Privity is required to support an award of “consequential damages” under the statute and section 2-318, which gives “all persons who could be reasonably expected to use a product privity with the seller for any breach of the <mask> of merchantability which causes personal injury” (Carpinello, Distinguishing between Tort and Contract in Product Liability Context, One on One, Newsletter of General Practice Section of New York State Bar Association, vol 5, No. 3, at 6) does not in our opinion apply to a breach of warranty of title (see, McKinney’s Cons Laws of NY, Book 62Vfc, Uniform Commercial Code § 2-318, comment 2, p 315). The judgment in favor of Abuhamda must therefore be reversed.


The court now turns to the second cause of action alleged in the complaint, to wit, that defendant breached its <mask> of fitness for the purpose intended. This court holds, under the law of the State of New York, there is no cause of action against the architect for breach of implied warranty and, for that reason, the second cause of action pleaded fails to state a cause of action.


With respect to the second, fourth and fifth causes of action *865and that part of the third cause of action alleging breach of <mask> of fitness for a particular purpose, defendant failed to “make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324). Because defendant failed to meet its burden in moving for summary judgment, it is not necessary to consider the sufficiency of plaintiff’s opposing papers (see, Ayotte v Gervasio, 81 NY2d 1062, 1063). (Appeal from Order of Supreme Court, Monroe County, Calvaruso, J.—Summary Judgment.) Present—Green, J. P., Balio, Fallon, Callahan and Davis, JJ.


The cases cited by respondent in support of its position are inopposite. None involved construction of a similar exclusion in a similar type of warranty. For example, Belden-Stark Brick Corp. v Rosen & Sons (39 AD2d 534, 535, affd 31 NY2d 884) involved a sale of bricks to a business and provided in part: “ ‘Seller shall not be liable for any consequential damage of any kind whatever’ ”. No such all-excluding provision is present in this consumer service warranty. Likewise, Singer Co. v Alka Knitting Mills (41 AD2d 856) involved a commercial sales contract between parties on a more equal footing, the sale of a knitting machine to a textile manufacturer. As the opinion notes the contract expressly excluded any seller liability for consequential damage. Bakal v Burroughs Corp. (74 Misc 2d 202) involved the sale of a computer and allied *932equipment from a manufacturer to a business person. The written warranty was held not to cover any incidental or consequential damages to the purchaser’s business because it expressly provided that in any event the seller’s only obligation was limited to an exchange of equipment and that the buyer expressly waived all damages, whether direct, incidental or consequential. Nothing in the warranty before the court so provides. The only question in Architectural Aluminum v Macarr (70 Misc 2d 495) was whether the written warranty excluded an <mask> of merchantability or fitness in a commercial sale of goods.


80 Cal.App.4th 1124, 1128; Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1572.) Moreover, a prevailing party under Code of Civil Procedure section 1032 is not necessarily a prevailing party under a separate attorney fee statute. (See Foothill Properties v. Lyon/Copley Corona Associates (1996) 46 Cal.App.4th 1542, 1554.) Here, the attorney fee statute at issue only awards attorney fees to a buyer who “prevails in an action under this section.” (§ 1794, subd. (d).) In turn, that section explicitly states: “Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.” (§ 1794, subd. (a).) Thus, the statute contemplates that a buyer must have been damaged to bring an action under Song-Beverly. And only by bringing an action under the Act, would the buyer even potentially be able to recover attorney fees under subdivision (d). Here, the trial court specifically found that Duff had not proved that he was damaged by Jaguar’s breach of the <mask> of fitness. Nevertheless, the court found it appropriate to award Duff nominal damages of $1. Arguably, those nominal damages could be considered a “net monetary recovery” entitling Duff to attorney fees under our holding in Reveles, supra, 57 Cal.App.4th 1139. Yet, in following Reveles and awarding attorney fees where the net monetary recovery is based on nominal damages after the fact finder determined Duff was not damaged, the trial court made an award that runs counter to the requirements of Song-Beverly. Duff was awarded substantial attorney fees under subdivision (d) of section 1794 without being damaged as required in subdivision (a). As we state ante, mechanically awarding attorney’s fees to a buyer is not the purpose of the Act. (See Dominguez, supra, 160 Cal.App.4th at p. 60.)


After the Legislature creates the substantive right, it is the court which must devise the procedure. (Shaw, New Law of <mask> of Habitability, NYLJ, Sept. 2, 1975, p 1, col 2.) In an attempt to fashion procedure for the enforcement of section 235-b of the Real Property Law, this court finds that as one of the facts and circumstances upon which a nonpayment proceeding is based, it is necessary for the purposes of subject matter jurisdiction for the petitioner to allege compliance with section 235-b of the Real Property Law. Proof of that allegation is also necessary to establish the petitioner’s entitlement to rent.


Again, the vocal and musical directors are made the arbiters of the fact and: extent of the incompetency under the rule. If, as claimed by the defendant, there is no qualification or limitation upon the word, or it is not controlled by any other word or sentence in the rule, why the necessity of its measurement by the directors? If the plaintiff was “incompetent,” in an artistic sense, he was under the definition wholly unfit to perform as a baritone, and the fact and extent of that incompetency did not require to be adjudged by the directors as a reason for discharging him. The law secured to’ the company the right at anytime, without such adjudication, to discharge the plaintiff for cause, such as unfitness or inherent want of ability to render the service which he agreed to render. It is the rule that, when a person engages to perform a service requiring the possession of special skill and qualities, there is an <mask> on his part that he is possessed of the req-uisites to perform the duties undertaken, and, if found wanting, the right to discharge exists. If, then, the “incompetency” intended by the rule was of: such a character as time might remove, and as to the fact and extent of which the directors were to be the sole judges, it could only have applied to physical-incompetency in its relation to this contract. It is scarcely to be assumedtliat, if he was incompetent from an artistic stand-point, it could be qualified or measured, or that time would remove the disqualification, or that the coitipany would have retained him and paid him a large salary for seven weeks? without complaint or adverse criticism. I am therefore urged to the conclusion that the true interpretation of rule 6 is that the incompetency must be such as is produced from physical causes arising after the contract is entered into.


The warranty of habitability has usually come into issue in summary proceedings for the nonpayment of rent. In that context the tenant raises the breach of the <mask> of habitability as a defense. This court holds that this warranty may be used affirmatively in a cause of action for property damage.3 Governor Carey stated in his memorandum of approval that: “[T]he circumstances and situations in which tenants will be seeking to enforce the warranty will take many forms. Tenants have utilized the doctrine affirmatively as well as defensively; as a counterclaim, set-off, and defense in non-payment of rent proceedings. The remedies have been complete or partial abatement of rent and reimbursement for repairs made by tenants themselves. It will be the court’s function to fashion remedies appropriate to the facts of each case” (NY Legis Ann, 1975, p 438; emphasis supplied). The bill’s leading sponsor, Senator Barclay, wrote that “this warranty is available as a cause of action or as an affirmative defense or counter claim” (NY Legis Ann, 1975, p 315).


“[W]here a limited warranty expressly excludes any common-law <mask>, it is exclusive and a cause of action sounding in common-law breach of contract may not be maintained” (Lantzy v Advantage Bldrs., Inc., 60 AD3d 1254, 1255 [3d Dept 2009]). “A breach of contract cause of action, however, is precluded only to the extent it is based on the breach of warranty” (Gallup at 1661), and a claim may be maintained alleging specific violations of the purchase contract (Tiffany at Westbury Condominium v Marelli Dev. Corp., 40 AD3d 1073, 1075-1076 [2d Dept 2007]). As plaintiffs have alleged the breach of a specific contractual provision requiring Barbera Homes to comply with all relevant laws and regulations in undertaking and completing the contracted work, the availability or assertion of a similar warranty claim does not compel dismissal of this cause of action.


And in a law review article by Margaret R. Scherer, entitled New York’s Search for an Effective <mask> of Habitability in Residential Leases (43 Albany L Rev 661, 686), Ms. Scherer states: “In light of the rule that statutes enlarging or limiting common law rights or liabilities should be construed as consistent with existing common law principles unless the intention to overrule such case law plainly appears by express legislative declaration or necessary implication, Kaplan should be overruled as an *132unwarranted extension of section 235-b and the implied warranty of Tonetti.”


A recent Appellate Term, First Department, case is nearly on point with the action at bar. In McBride v 218 E. 70th St. Assoc. (102 Misc 2d 279), the tenant sued her landlord for property damage resulting from the latest of eight floods. The apartment was flooded with six inches of water. The plaintiff moved for summary judgment on her cause of action based on the breach of <mask> of habitability. The Appellate Term ruled that the motion should be granted as to the issue of liability but ordered an assessment of damages. The court found that this tenant did not cause the flooding or contribute to it. There need not be a showing that the landlord acted in bad faith or contributed to the defective condition of-the premises. The court seemingly approved the reasoning of Kaplan v Coulston (85 Misc 2d 745, supra), and it cited it with approval.


On the contrary, the contract declared on and admitted by the pleadings is an executed sale, on which no-<mask> attaches (Hart v. Wright, 17 Wend. 267; 18 Id. 449); for, in the language of Judge Paige, in Hargous v. Stone (5 N. Y. 86), “ If the article is at the time of the sale in existence and defined and is specifically sold, and the title passes in presentí to the vendee, the transaction amounts to an executed sale, and although there is no opportunity for inspection, there will be no implied warranty that the article is merchantable.” But even on a sale of goods “ to arrive,” the warranty implied by the law must be reasonable, and the purchaser must bear the risk of deterioration which is necessarily consequent upon the transmission (Bull v. Robinson, 10 Exch. 342-346). The coal was of the brand indicated (Dounce v. Dow, 64 N. Y. 411), and the defendant did not elect to reject, but accepted it (Townsend v. Shepard, 64 Barb. 39). So that whatever remedy he might otherwise have had, it is clear from the pleadings and proof that there is no defense.


The issue then narrows to a determination of whether or not the presence of a piece of magnesium ammonium phosphate, also known as a struvite crystal, contained in a can of tuna fish, constitutes a breach of <mask>, merchantability and fitness for human consumption. There is no question that there was an implied warranty that the tuna fish was of merchantable quality and fit for human consumption. (Personal Property Law, § 96; Ryan v. Progressive Grocery Stores, 255 N. Y. 388; Greco v. Kresge Co., 277 N. Y. 26.)


Lastly, defendants urge that the sixth and seventh causes of action for breach of implied and express warranty, respectively, lack necessary allegations of privity, as did the original complaint. A comparison of the complaint and the amended complaint indicates that no new allegations have been provided to support the previously deficient <mask> claim. It is clear that allegations of privity, that is of a direct sale by each defendant to plaintiff personally or through their agents (see, Utica Observer Dispatch v Booth, 106 AD2d 863), are required on an implied warranty claim when only property damages or economic loss is alleged. (UCC 2-318 [prior to 1975 amendment]; Miller v General Motors Corp., 99 AD2d 454, affd 64 NY2d 1081; Jaffe Assocs. v Bilslo Auto Serv., 58 NY2d 993; Aniel Oldsmobile-Cadillac v Sirus Leasing Co., 101 AD2d 688.) Here, there is no allegation of a direct link in the distributive chain (Heller v U. S. Suzuki Motor Corp., 64 NY2d 407, 410 [1985]). While the law school alleges that defendants sold the asbestos products, there is no allegation regarding to whom such products were sold. Accordingly, the implied warranty claim asserted as the sixth cause of action is dismissed. Since, however, in these complex asbestos actions facts regarding which defendant supplied which product and whether such product was directly supplied, are unearthed following protracted disclosure, Brooklyn Law School may move for leave to replead this cause of action upon a proper showing which shall include facts indicating which defendants directly sold specified products to Brooklyn Law School, personally or through the parties’ agents.


The court concluded that “the housing merchant <mask> statute * * * only applies to contracts or agreements for the sale of new homes,” which requires “a sale and passing of title” (184 Misc 2d at 414-415, citing Caceci, supra; Roberts, supra; Fumarelli, supra; Chan v Rose Constr. Corp., 211 AD2d 872 [3d Dept 1995]; Pitcherello v Moray Homes, 150 AD2d 860 [3d Dept 1989]).5 That not being the case where the new home is constructed on land already titled to the homeowner, the statute does not apply, and any contractually derived claim is unimpaired by the statutory notice and statute of limitations provisions.


In the case of Booth v. Alcock (L. R., 8 Ch. App., 663), a lessor granted a lease of a house with its appurtenances, among which lights were specified. At the time of the grant he held an adjoining house for a term of years. He subsequently acquired the reversion, expectant on the term, of the adjoining house, and, after the expiration of the term, he proceeded to build on the site of the adjoining house in a manner which might interfere with the lights of the demised house. Held, that he was not prevented from so doing; that the general words in a grant must be restricted to what the grantor then had power to grant, and will not extend to what he may subsequently acquire. In this case lights were expressly mentioned. Yet the lessee obtained only such rights as the lessor had at the time, and could not control even such as the lessor afterwards acquired. As the lessor warrants what he leases, it must have been held that such <mask> only applied to such rights and easements as he then had power to grant. But if his lease bound him to warrant the *480apparent easement, lie would not have been permitted to assert bis subsequently acquired rights to the prejudice of that easement. Much less, then, would the lessor have been liable for the acts of third parties.


Section 2-316 (subd [3], par [b]) of the Uniform Commercial Code was considered by the the court in Tarulli (supra). The section provides: “when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no <mask> with regard to defects which an examination ought in the circumstances to have revealed to him”.


Claimant’s contention that privity has been discarded in a breach of warranty cause of action is incorrect. Privity of contract is no longer required in breach of warranty actions involving strict products liability situations for the very good reason such actions (at least as to parties not in privity — see DeCrosta v Reynolds Constr. & Supply Corp., 49 AD2d 476) are tortious, not contractual. (See Victorson v Bock Laundry Mach. Co., 37 NY2d 395, 401-402.) The warranties implied in *640these actions are ones implied in law, distinct and separate from the relevant sales contract. (Ibid.) The putative warranty alleged by claimant here, if it exists at all, clearly does not involve products liability. It is dependent upon and a part of the prime contracts between the State and Green Island, its general contractor. Claimant has pointed to no legal obligation which would support such a warranty independent of said contracts. In fact, it could be argued that no breach of an <mask> cause of action exists separate from contract other than in the sale of goods. (See Aegis Prods. v Arriflex Corp. of Amer., 25 AD2d 639; see, also, Sears, Roebuck & Co. v Enco Assoc., 83 Misc 2d 552, 557-558, affd 54 AD2d 13.) The use of the term "implied warranty”, with all its products liability and Uniform Commercial Code sale of goods associations, is perhaps inappropriate and confusing in public construction contract cases. We believe analysis would be aided if it were remembered that the limited warranties implied in such cases (such as furnishing the construction site — see generally 48 NY Jur, Public Works and Contracts, § 81) are nothing more than additional contract terms implied from the underlying express contract and the surrounding circumstances. Such warranties should thus be considered purely contractual and we fail to see how the warranty constructed by claimant here can be viewed any differently. The court thus concludes that a claim based on breach of warranty is unfounded.2


Burwell v Jackson (9 NY 535 [1854]), a case cited by the sons purportedly for the proposition that an assignment carries with it an <mask> of title, applies only to executory *363agreements. Here, the 1980 agreement was made pursuant to a fully consummated contract for sale between the developers and the co-op, and was not executory. Moreover, the policy expressly requires that an instrument that transfers title contain a covenant or warranty of title (conditions of the policy § 3 [f]).


The complaint made the transactions an arrangement to “manufacture for” defendants articles (not yet in use) of a certain sort prescribed. This is not a sale in prcesenti, within the statute of frauds, but an agreement to do work and supply the material thereto. Parsons v. Loucks, 48 N. Y. 17; Deal v. Maxwell, 51 N. Y. 652. In such cases there exists an <mask> that the articles will be free from any latent defect growing out of the process of manufacture, and the rule of “caveat venditor” governs in respect thereof; but as to latent defects in the “materials” used, proof or direct inference of the manufacturer’s knowledge of such latter must be affirmatively shown on the vendee’s part. Hoe v. Sanborn, 21 N. Y. 552, approved in Bridge Co. v. Hamilton, 110 U. S. 114, 3 Sup. Ct. Rep. 537; Howard v. Hoey, 23 Wend. 350. However, a warranty of “fitness” of the ordered chattels for any special, known, or supposed use or purpose is not implied, but the same must be particularly bargained for. Bartlett v. Hoppock, 34 N. Y, 118. The title to the respective articles, of course, remains in such manufacturer until the legal “delivery” and approval of the finished article. Kein v. Tupper, 52 N. Y. 550, 553, 555; Tompkins v. Dudley, 25 N. Y. 273, 274. Meanwhile no action lies for the contract price. 52 Ñ. Y. 555. As regards the “counterclaim,” there was no proof offered, however, that the first lot as delivered was not made equal to the “sample,” No. 260; and such counter-claim was properly disregarded by the court, as unproven. Beck v. Sheldon, 48 N. Y. 365. But as to the second lot of yarn. Before any thereof had been shipped the purchasers duly stopped all further “shipping” of any more goods until further instructions from them. This also appears directly admitted on the face of the complaint. Hence the contract price and charges for shipment were thereafter not recoverable, as such stoppage of further performance was never revoked, (Smith v. Brady, 17 N. Y. 174, 188; Husted v. Craig, 36 N. Y. 221;) and consequently the only remedy of the manufacturer was a suit, not upon and in pursuance of the contract, but for the manufacturer’s “damages” sustained by reason of the vendee’s breach of the contract, through the loss of profits and other attendant injury. Messmore v. Shot Co., 40 N. Y; 427. For, when stopped, the manufacturer could legally go no further. Goodwin v. Kirker, 2 Hilt. 401. The price cannot be recovered, as the “contract price” is not divisible, and the whole agreement was not “performed” when further shipment was forbidden; and, as the yarn on hand or finished could not, thereafter, be rightfully sent off to the place of destination, it remained the manufacturer’s property, and if lost or destroyed he must bear the loss himself. Such stoppage has not been recalled. See Butler v. Butler, 77 N. Y. 472, 475, and authorities cited. The rule is laid down: “No title vests in him for whom a chattel is to be manufactured till it is finished and properly delivered and approved, or sufficiently submitted for approval.” Andrews v. Durant, 11 N. Y. 35, 40, 45. To same effect, Atkinson v. Bell, 8 Barn. & C. 277; Merritt v. Johnson, 7 Johns. 473. And, therefore, no action for the “price” accrues until then. Kein v. Tupper, 52 N. Y. 555. And this is so, although the manufacture (in Europe) of the whole goods was not countermanded, but only their shipment was stopped. The like principles must here apply. The contract sued on, providing for a delivery at a distant point from Europe, was “ambulatory,” until appropriate delivery of the articles ordered. Evans v. Harris, 19 Barb. 417, 427, 428. The case on such rejected goods, as made out by the pleadings and the evidence, was solely one of a “refusal to accept goods” *408manufactured to order, and in such cases, ordinarily, the measure of damages, at most, is the difference between the market value of the goods at the time of the breach of contract and the price at which they were ordered; and a notice to accept was a necessary prerequisite to be given unto the vendee hereto, and the refused merchandise as manufactured might have been sold at auction, with a view of getting at such market value. Bigelow v. Legg, 102 N. Y. 652, 653, 6 N. E. Rep. 107; Myers v. De Mier, 52 N. Y. 647, 648; Messmore v. Shot Co., 40 N. Y. 422, 427; Beebe v. Dowd, 22 Barb. 255. No notice to defendant of such auction sale would be required. Messmore v. Shot Co., 40 N.Y. 422.


Robert G. Hurlbutt, J. Plaintiffs commenced the first-captioned action in September 1986, and the second-captioned action in September 1987, by service of summonses and complaints asserting causes of action including negligence, strict liability, <mask> and loss of consortium. Plaintiff Donald Burdick alleges that while he was employed by the Valeron Corporation at the Valenite Metals Division in Dewitt, New York, from 1966 to 1969, he was exposed to "cobalt, cobalt dust, and fumes containing cobalt” which caused him to develop cobalt-related lung disease (otherwise known as hard metals disease) and that defendants were manufacturers and suppliers of the cobalt and cobalt-containing materials which caused his injury. The summary judgment motions brought by defendant Afrimet-Indussa Inc., in the first-captioned action, and defendant Kennametal, Inc., in the second-captioned action are identical in fact and theory and, thus, the determination made herein shall apply to both captioned actions.


In Natale v Martin Volkswagen (92 Misc 2d 1046 [City Ct, Utica 1978]) the court held that a hand-stamped disclaimer stating "this car sold without any guarantee. This car sold in its present condition as is” was ineffective to eliminate the <mask> of merchantability. The words were "stamped over other printed material in such a way as to obscure those words and make it difficult, if not impossible, to read. The buyer cannot be expected to agree to a waiver which she could not read” (supra, p 1049).


FHSA does not preempt plaintiffs’ <mask> claims (see, Wright v Dow Chem., supra; Casper v Du Pont de Nemours & Co., supra). Although such claims are based upon requirements imposed by State law, thus satisfying the first prong of the preemption analysis, not all of plaintiffs’ claims relate to labeling and, thus, they do not satisfy the second prong. Under UCC 2-314 (2) (e) and (f), "[g]oods to be merchantable must be at least such as * * * are adequately contained, packaged, and labeled as the agreement may require; and * * * conform to the promises or affirmations of fact made on the container or label if any”. Plaintiffs’ claims that relate to the "promises or affirmations of fact made on the container or label” (i.e., adequate warning claims) are preempted. However, plaintiffs’ amended and proposed second amended complaints are not confined only to such claims.


He contends that the boat engine, because of its defective design and assembly, from the time of purchase, would not operate at full power and flooded regularly. That the double warranties of section 2-314 (subd [2], par [c]) (<mask>; merchantability; usage of trade) and section 2-315 (implied warranty; fitness for particular purpose) of the Uniform Commercial Code apply without limitation based upon the provisions of section 2-316 of the Uniform Commercial Code (exclusion or modification of warranties).


In Adamson v. Jarvis, (12 Moore, 253,) Best, Ch. J., after examining the cases, says: “ These cases rest on the principle that if a man, having the possession of property which gives him the character of owner, affirms that he is owner and thereby induces another to buy, when in point of fact the affirmant is not the owner, he is liable to an action.” So far as the courts in this country have examined this question, the authorities sustain the distinction laid down by Chancellor Kent. In Gookin v. Graham, (5 Hump. Rep. 480,) the supreme court of Tennessee said : “ In a sale of personal property there is always an <mask> of title, unless it be purchased under such circumstances as clearly show that the vendee intended to risk the title; as if the vendor be not in possession, but the same be held adversely by another.” See also Andres v. Lee, (1 Dev. & Bat. 318.) So in Trigg v. Ferris, (5 Humph. 343,) Reeve, J., in giving the opinion of the court, said, “ It is a well settled principle, applicable to all sales of chattels in the possession of the vendor, that the act or fact of sale itself, by operation of law, implies and involves a warranty of title.”


In its cause of action against the shipper, the plaintiff alleges that the shipper warranted that the reactor would be properly packaged for shipment and the shipper breached that warranty. The shipper denies that there was any warranty either express or implied. In his brief, counsel for the shipper states, “ The contract of sale in this case called for the manufacture by Sybron of a certain glass lined reactor with an agitator for the use of Standard Brands. The contract did not provide for the sale of any bracing, either internal or external, to the plaintiff.” Counsel further argues that an <mask> of bracing for shipment is not encompassed within the implied warranty provisions of the Uniform Commercial Code (-§§ 2-314, 2-315) and that this is so because the preparation of bracing and loading constitutes a service and not a sale of goods as contemplated by the Uniform Commercial Code.


“specifically rejected the contention that the warranty was intended to make the landlord a guarantor of every amenity- customarily rendered in the landlord-tenant relationship and held that the <mask> protects only against conditions that materially affect the health and safety of tenants or deficiencies that in the eyes of a reasonable person . . . deprive the tenant of those essential functions which a residence is expected to provide” (Solow v Wellner, 86 NY2d 582, 588 [1995] [internal quotation marks and citations omitted]). Cohoes Housing outlined a list of code violations (exhibit B). The existence of a code violation does not automatically translate into a breach of the warranty of habitability; rather, “once a code violation has been shown, the [tenant] must come forward with evidence concerning the extensiveness of the breach, the manner on which it impacted upon the health, safety or welfare of the tenants” (211 E 46th Owners LLC v Mohabir, 33 Misc 3d 1232[A], 2011 NY Slip Op 52195[U], *7 [Civ Ct, NY County 2011] [internal quotation marks and citations omitted]).


The court finds the condition of bedbugs in the building generally was known to petitioner early in June 2003 and with respect to the premises particularly in late June 2003 when respondent informed petitioner. An abatement based upon the <mask> of habitability pursuant to Real Property Law § 235-b protects only against conditions that materially affect the health and safety of tenants or deficiencies that in the eyes of a reasonable person deprive the tenant of those essential functions which a residence is expected to provide. (Solow v *519Wellner, 86 NY2d 582 [1995], quoting Park W. Mgt. Corp. v Mitchell, 47 NY2d 316 [1979].) Respondent showed through his graphic testimony that the bedbug infestation impacted or affected his health, safety and welfare and use of the premises. There can be no doubt that the presence of the bedbugs in the premises satisfies the above criteria for an abatement under these set of facts.


The sixth cause of action is for breach of contract in the nature of breach of warranty that the house was habitable. There is no <mask> of habitability in the sale of a previously owned home. (Real Property Law § 251; Carter v Cain, 112 AD2d 2 [4th Dept 1985]; Young v Keith, 112 AD2d 625, supra; see, Caceci v Di Canio Constr., 72 NY2d 52, 57 *517[1988] [common-law housing merchant warranty implied in sale of new homes] [now statutory, General Business Law § 777-a]; 7 Powell, Real Property, lffl 938.2, 938.6 [2]; 91 NY Jur 2d, Real Property Sales and Exchanges, §§45, 46; 2 Harvey, Law of Real Property and Title Closing, § 471; Annotation, Defective Home — Vendor’s Liability, 25 ALR3d 383; 7 Williston, Contracts § 926; id., vol 11, § 1399A [3d ed 1961].)


*162The leading case in the area is Park West Mgt. Corp. v Mitchell (47 NY2d 316, cert den 444 US 992). In that case, the New York Court of Appeals held that a landlord, while not an insurer of the premises, impliedly warrants that (1) the premises will be fit for human habitation, (2) the condition of the premises is in accord with the uses reasonably intended by the parties, and (3) the tenants are not subjected to any conditions endangering or detrimental to their life, health or safety. The court expressed the paramount purpose of the <mask> of habitability as a means by which a tenant will be placed in a more equitable bargaining position vis-a-vis the landlord.


This court therefore assumes that the Statute of Limitations for the implied housing merchant warranty is more than four years and it is this court’s profound belief the warranty is for a period equal to what a reasonable expectation would be that a house constructed in a workmanlike manner would be free of material defects. This court therefore finds that the Statute of Limitations for a defective roof is over six years as one could reasonably expect that a well-made roof should last over six years. The court is aware of Laws of 1988 (ch 709) (Senate bill 5395-A) which amends the General Business Law and the CPLR to create an <mask> for the sale of a new home and to establish a six-year Statute of Limitations for *999breach of such warranty, however, that law does not become effective until March 1, 1989 and is not applicable to contracts of sale for new homes entered into before the effective date.


The author cites Mones v. Imperial Bottling Works, Inc. (14 N. J. Misc. 369; 185 A. 483) where a drug was sold which did not satisfy the standards of that State, and Haynor Mfg. Co. v. Davis (147 N. C. 267; 61 S. E. 54), holding that the <mask> of merchantability was broken when there was a sale of intoxicants which could not be resold without violating a law.


In Rodrigues v. Habersham, (1 Spear's S. C. Rep. 314,) it was held “ If a seller expressly refuse to warrant, there can be no pretence for raising the <mask>; but what amounts to a refusal to warrant must in general be submitted to a jury.” In Smith v. The Bank of the State of South Carolina, (Riley's Ch. Rep. 113,) where the seller struck the clause of warranty out of a deed, it was decided in the court of equity that there was no implied warranty. The language of Gaston, J., in Andrews v. Lee, (1 Dev. & Bat. Eq. Cas. 321,) seems to me peculiarly applicable to this case. “ The price shows that the purchase was a speculation; and the giving of a note for the purchase money, without delivery of the property, or covenants from the vendors as to title, leaves scarcely room to doubt but that he bought at his own hazard.”


On May 21, 2014, plaintiff commenced this action against Pack Line and Nuspark. Plaintiff alleges, among other things, that “[b]etween in or around December 2009 and August 2010, *213the Auto Tubber was delivered, set up, installed and tested in [plaintiff’s] facility.” (Verified complaint ¶ 18.) Plaintiff also alleges that “[u]pon completion of installation, Pack Line tested the Auto Tubber, and it was immediately apparent that the machine was completely defective and unsatisfactorily manufactured.” (Verified complaint ¶ 19.) Plaintiff further alleges that “[immediately upon delivery, [plaintiff] made numerous complaints about the defective Auto Tubber to Pack Line and Nuspark.” (Verified complaint ¶ 27.) Plaintiff asserts causes of action for breach of contract, breach of the implied covenant of good faith, breach of express warranty, breach of the <mask> of merchantability, breach of the implied warranty of fitness, and unjust enrichment.


Similarly, an appellate court in California has applied strict liability to a landlord when a tenant in a furnished apartment injured her back when she fell through a couch with defective supporting straps. Two of four straps were missing and the remaining straps were loose. The landlord had purchased the couch one year before the accident, but the plaintiff was the first tenant to use it. The court applied the doctrine of strict liability to the landlord as a lessor of personal property, not as a lessor of real property. (Fakhoury v Magner, 25 Cal App 3d 58.) In so holding the court extended the line of cases illustrated by Cintrone (45 NJ 434, supra), concerning a lessor of personal property to a landlord of a furnished apartment. An <mask> has been attributed to a sale of realty to the effect that the house will be erected in a reasonably workmanlike manner and will be reasonably fit for human habitation. (Schipper v Levitt & Sons, 44 NJ 70.) There the court concluded that the failure to install a mixing valve caused the scalding of an infant plaintiff.


The law in every contract of marine insurance (without special provision to the contrary) raises an <mask>, as well by the owner of the vessel, as of the cargo, of its seaworthiness at the commencement of the voyage; but this mere implication, predicated upon the requirements of good faith and honest dealings, may be obviated and destroyed by direct proof, of a full disclosure of such facts of unseaworthiness, as preclude the supposition of any such understanding between the parties,°or where the insurance is of a vessel at sea, where it is well understood the assured could not know her condition. The contract in this case was general against Tjarratry of the master and mariners, and all other losses or misfortunes that should occasion damage to the goods on the voyage. The goods were lost by the sinking of the vessel at sea, and it would seem to be a most hypercritical and technical rule of construction that would exempt the insurers from any loss (not expressly excepted) occurring on the voyage, without fault of the assured, aftér the risk had attached (Cullen v. Butler, 5 M. & S. 461). If the vessel, crew, and equipments were sufficient at the commencement of the voyage, the assured fully complied with all her obligations, and she made no warranty that the vessel should continue seaworthy, or as to the future conduct of the managers of the vessel (1 Arn. on Ins. § 244, 5; 1 Phil, on Ins. § 733). In the case of an insurance by the owner of the vessel, a qualification may exist in the operation of any such general rule as to accidents happening during the voyage, arising from his own obligation to keep the vessel in suitable" condition for the service in which it is engaged; for if, from bad faith or want of ordinary prudence and diligence, he fails to do so, and loss happens from that cause, he, and not the *252underwriter, must bear the consequences (Paddock v. Franklin Ins. Co. 11 Pick. 227; Starbuck v. N. E. Mar. Ins. Co. 19 Id. 198 ; Copeland v. Same, 2 Met. 432; Am. Ins. Co. v. Ogden, 20 Wend. 287).


Upon every sale of a note there is an <mask> on the part of the vendor that it is a legal note; that the parties whose names appear thereon as makers or endorsers are legally holden as such, and that the note has not already been paid. In other words, there is an implied warranty of the seller’s title to the note, unless he gives the purchaser the requisite information to put him on his guard; but if the vendee has such information, he purchases at his peril, and at his own risk. In this case, if the broker had sold the note as his own, without informing Hendricks that the money was really advanced for the benefit of the endorser, the endorsement having been made for an usurious purpose, and not on a legal transfer of the note to the broker, the latter would have been liable to refund the money, either on account of the implied warranty, or of the fraud, if the purchaser could not legally recover of the parties whose names appeared on the paper; and probably the endorser, who had thus improperly obtained the money from the innocent vendee by means of his agent, would also have been liable as for so much money had and received to the use of the purchaser. By the application of these plain and obvious principles of law and natural justice, the laws of the state will be enforced, and innocent purchasers of negotiable paper will be protected against the frauds which are so frequently practiced upon them.


Further, plaintiffs negligent testing claim (in the first cause of action), to the extent it is based upon a failure to warn theory, is preempted because such a claim would "require a showing that [the defendants manufacturers’] [packaging and labeling] should have included additional, or more clearly stated, warnings” (Cipollone v Liggett Group, 505 US, at 524, supra; Warner v American Flouride Co., supra, at 3, 12-13 [dismissing negligence, strict tort liability, and breach of *452<mask> claims premised upon inadequate labels]). To the extent plaintiff does not rely on defendants’ labels or packaging to allege negligent testing, such claims are not preempted (Cipollone v Liggett Group, 505 US, at 524, supra; Taylor AG Indus, v Pure-Gro, supra, 54d, at 561-562).


The second cause of action incorporates the agreement and alleges an <mask> that Wayne “ would perform the work provided in said contract in a good and workmanlike manner and would use ordinary care and suitable materials that the premises were constructed in a careless, negligent and unworkmanlike manner, and with improper materials, in that, among other things, many defects subsequently appeared, including a leaking basement, a sinking rear yard, and sinking exterior asphalt work. The third cause of action relates solely to a bulkhead alleged to have been constructed by Wayne Land Company, Inc., some of whose officers and agents were also officers and agents of the defendant Wayne, and alleges that there were latent defects in the bulkhead and that it was not constructed in conformity with law. It is to those last two causes of action that this motion is directed.


Because the defendant was not “a merchant with respect to goods of that kind” as contemplated in section 2-314 of the Uniform Commercial Code, this court cannot construe *232an <mask> of merchantability (see, also, Uniform Commercial Code, § 2-104). And although the fitness warranty of section 2-315 of the Uniform Commercial Code does not require that the seller be a merchant, this court concludes that that warranty is inapplicable to the case at bar in that there was little or no evidence that plaintiff buyer was “relying on the seller’s skill or judgment to select or furnish suitable goods” (Uniform Commercial Code, § 2-315).


An <mask> that an article is fit for human consumption when the article is prepared for sale as food follows the article. Why there should be one rule when the action rests in negfigence, and another rule when the action is for breach of warranty, excepting what I have already referred to, is not apparent to me. If in the end the manufacturer or producer is liable for any defect or unwholesomeness in the article that he manufactures and which he holds out to the pubHc as being fit for the purposes manufactured for, there seems to be no reason why intermediate action should be required. This, however, does not arise in this case; the action rests in negfigence. Following the opinion in MacPherson v. Buick Motor Co., which decision has not been overruled by the Court of Appeals, in the later case of Chysky v. Drake Bros. Co. (supra), but reaffirmed by the said Chysky case, the question of privity of contract, in a case resting in breach of warranty, need not- be passed upon by me.


‘We may not rewrite the section to conform to that unexpressed, supposed intent.’ [Citation.]” (Id. at p. 194, fns. omitted.) Duff asserts the instant action is analogous to Martinez because, like the trial court there, the trial court in the instant action added a requirement to Song-Beverly. Specifically, Duff argues the trial court’s determination that he is not entitled to damages under section 1794, subdivision (b)(1) would add the requirement to the statute that all lessees of any vehicle must return the vehicle at the end of the lease term or waive damages under that subdivision. We do not see such a sweeping general principle arising out of the judgment in the instant action. The trial court here did not add any additional requirement to Song-Beverly. It simply made a necessary factual finding as required under section 1794 to determine what damages were available to Duff for breach of the <mask>. In other words, contrary to adding a requirement to Song-Beverly, the trial court merely followed the Act. Similarly, we are not persuaded by Duff’s argument that the trial court’s finding that he was not entitled to damages under section 1794, subdivision (b)(1) violated Song-Beverly because it resulted in the unequal treatment of purchasers and lessees. Under Song-Beverly, a lessee has the same rights as a purchaser of goods. (See § 1795.4, subd. (b).) Here, Duff argues that a purchaser who still owned a vehicle at the time of trial would not be deprived of damages under subdivision (b)(1) of section 1794, but he, as a lessee, was so denied simply because he purchased the vehicle after the lease expired and owned it at the time of trial. Not so. Whether a plaintiff is a purchaser or a lessee of a vehicle, to recover what he or she paid for the vehicle, the plaintiff must prove he or she “rightfully rejected or justifiably revoked acceptance of the goods or ha[d] exercised any right to cancel the sale.” (§ 1794, subd. (b)(1).) Thus, Duff had to show that he rejected or


12 Respondent argues that appellant “cannot raise a negligence per se argument as to statutes identified for the first time in her opposition to [the] motion for summary judgment. Appellant cannot keep moving the goal post. The tactic of changing one’s story to avoid summary judgment . . . is improper.” We note that she objected to appellant’s new claims based on the <mask> of habitability, nuisance, and unfair business practices, but there was no similar objection to claims based on the Building Code, the Civil Code or the State Housing Act of California. As to those last three statutory based claims, Cassell briefed them in her reply papers. Though these issues are moot, it bears noting that respondent cannot be heard to complain that appellant raised new theories in her opposition to the summary judgment motion because the reply brief addressed appellant’s new theories on the merits without raising an objection. (Stalnaker v. Boeing Co. (1986) 186 Cal.App.3d 1291, 1302 [by briefing the merits and not objecting, defendant waived objection to plaintiff asserting a new cause of action in opposition to summary judgment].)


Indeed, contrary to Sierra Palms's reading of Windham , that case suggests section 5980 should be read expansively. Confronted with the contention the legislative authorization to bring a claim for property damage to a common area did not include a cause of action premised on a breach of warranty, the Windham court rejected the argument as too narrow a construction of the statutory language and contrary to the statutory purpose. By giving the homeowners association standing to sue for property damage to common areas as the real party in interest, the court explained, the Legislature necessarily intended that the association stand in the shoes of the property owner and be able to bring a claim for damage to the common area, regardless of theory. (See Windham, supra , 109 Cal.App.4th at p. 1174, 135 Cal.Rptr.2d 834 [the Legislature intended "to allow associations to sue as real parties in interest for damage to common areas whether for breach of <mask> or on any other theory of liability"].)


The court believes that these general principles of law *865have broad application, and are relevant to the present case. We find that no <mask> of perfection results from the rendition of services by the State. Therefore, no claim based on strict liability can lie.2 We leave open the possibility that liability for an inadequate design may be established on a negligence theory. To establish negligence on the part of the State, it will be necessary to meet the more stringent test of Weiss v Fote (7 NY2d 579, supra) set forth above.


*406On the other hand, there are “defenses” to a claim for breach of <mask>, and defendant has the burden of establishing a defense. “Defenses available to claims of breach of the implied warranty of merchantability include the buyer’s contributory conduct * * * [T]he focus is on factors that may sufficiently attenuate the causal connection between the defendant’s acts and the plaintiffs injury to bar recovery.” (Bellevue S. Assoc. v HRH Constr. Corp., 78 NY2d 282, 298 [1991] [internal quotation marks omitted], quoting 1 White and Summers, Uniform Commercial Code § 11-8, at 541 [Practitioner’s 3d ed].) Among the available “defenses” is “misuse” of the product. (Carbone v Alagna, 239 AD2d 454, 456 [2d Dept 1997].) However, “culpability on the part of a [claimant] in mishandling the product * * * will not bar recovery unless that conduct is found to be the sole cause of the [claimant’s] injury.” (Schafer v Standard Ry. Fusee Corp., 200 AD2d 564, 565 [2d Dept 1994].)


Plaintiffs ’ purchases by competitive bids at a public auction were made in 1962 and 1964.. At that time neither the statutory nor decisional law, applicable to such purchases, recognized the expressed opinion or judgment of the seller as giving rise to any <mask> of authenticity of authorship. (See Memorandum of the -State Dept, of Law [McKinney’s 1968 Session Laws, vol. 2, pp. 2284 — 2285] recommending remedial legislation [now General Business Law, §'§ 219, 219-a] to change the then existing law.)


We now examine the jurisdiction issue in the instant case. As set forth ante, plaintiffs brought causes of action for (1) negligence; (2) nuisance; (3) trespass; (4) strict liability/products liability; (5) strict liability/<mask> of fitness; (6) strict liability/ultra hazardous activity; and (7) intentional infliction of emotional distress. Plaintiffs are complaining of stray voltage entering their property from the Indian Wells substation. Plaintiffs allege they have suffered health issues due to the stray voltage from the substation.


“Not at all analogous to the case before us is our *561decision . . . holding that, ‘where a customer enters a restaurant, receives, eats and pays for food, delivered to him on his order, the transaction is a purchase of goods.’ . . . While it has been said that a restaurant owner does not sell food, but rather renders a service, the fact is that there is ‘a sale of what is actually used’ . . . [T]here can be no doubt that, when one goes into a restaurant, he does so in order to buy what the restaurant in truth has to sell, namely, food.” (Perlmutter v Beth David Hosp., 308 NY at 107, quoting Temple v Keeler, 238 NY at 346, 347.) The issue in Temple v Keeler was also the applicability of an <mask> of fitness. In reaching the conclusion that there was “a sale of what [was] actually used” (id. at 347), the Court noted a prior “authoritative decision,” construing a criminal statute, which “held that a hotel keeper who places before his guests at dinner, partridges, sells the birds, although the guests paid a total sum for [food] and lodging.” (Id.)


*380This court believes that the circumstances surrounding the purchase of the “outboard” for “Pleasure Use” and its registration for such purpose by defendant gives rise to both an <mask> of merchantability and an implied warranty of fitness for a particular purpose. (Pleasure Use.) These double warranties exist and recovery may be based on either or both warranties. (See Uniform Commercial Code: Implied Warranty of Fitness For Particular Purpose as Including Fitness For Ordinary Use, Ann., 83 ALR3d 656; What Constitutes “Particular Purpose” Within Meaning of UCC § 2-315 Dealing with Implied Warranty of Fitness, Ann., 83 ALR3d 669.) The plaintiff having established to the court’s satisfaction the existence of both warranties, the defendant has a shifted burden to establish an exclusion or modification of these implied warranties under section 2-316 of the Uniform Commercial Code, by way of defense or disclaimer.


“ [T]he oral and written notices in 1966, the attempt to have a non-waiver agreement signed, the explanation by Hearing’s own attorney of the effect of Hartford’s action, Hartford’s letter of March 6, 1968, and Hartford’s offer to settle the actions and reserve the rights of both parties on the coverage question, were 1 fair notice ’ to the insured of the company’s position. “ [Plaintiff] argues in its memorandum that Hartford waived its rights by proceeding to defend the negligence actions without insisting that the non-waiver agreement be signed. Not only is this answered by the Court of Appeals in the Goldberg case [Goldberg v. Lumber Mut. Cas. Ins. Co., 297 N. Y. 148], but in our case it is obvious that to resubmit the non-waiver agreement would have been an idle gesture. Mr. Night had said in his letter of March 16, 1966, to Kearing, (plaintiff’s Exhibit 27 attached to the answering affidavit), that he would recommend signing of the non-waiver agreement provided ‘ Hartford will make an investigation or defend Hearing if the agreement is signed ’. This was precisely what Hartford had agreed to do ten days earlier in its letter of transmittal (Exhibit G-l). Later, Night admitted at pages 49-55 that he would not let or permit his client to sign the non-waiver agreement. “ In that testimony, the Court will note a confirmation of what we have said concerning products coverage under the garage liability endorsement. At page 50, Mr. Night said: “ ‘ Now, of course, there was other coverage I felt applicable to this loss and that I had called to the Hartford’s attention. “1Q.. What other coverage did you claim applied to this loss ? “1 A. In my letter to Hartford of March 17,1966,1 pointed out to him that the garage comprehensive endorsement in my opinion covered this loss.’ “Hartford’s position was stated by Mr. Pugh in a conversation of May 31, 1966, in which Mr. Pugh apparently told Mr. Night: “1 That Hartford Accident covered this loss and would defend Hearing because they were convinced that there was coverage under the claim that there was a breach of the <mask>, and that this was coverage under the garage comprehensive aspect of the policy even though there was a question with regard to the negligence in the manufacture of the tread of the tire, but as to that, Hartford was convinced that this was no longer an issue in the ease.’ *358“ So we see that even at that early date, both Kearing’s lawyer and Hartford’s representatives, were of the same opinion and that is that if this tire were sold as part of the garage operations, there was coverage for Hearing and Hartford was obliged to defend. That obligation continued up to and through the trial until it was determined at the trial that the tire was not sold as part of the garage operations and, therefore, and at that time, it was determined that Hartford had no obligation to indemnify Hearing.” On the other hand, plaintiff’s counsel urge in a memorandum:


In the instant case, respondent knew he was living directly above commercial space facing a busy City thoroughfare, Third Avenue at approximately 69th Street. The installation and use of Lechters’ illuminated awning is something that could be reasonably expected by the parties, given the location of the apartment. Furthermore, it is reasonable to expect that if any light cast into the Leland apartment from the awning was disturbing, respondent would close his curtains. "If, in the eyes of a reasonable person, defects in the dwelling deprive the tenant of those essential functions which a residence is expected to provide, a breach of the <mask> of habitability has occurred” (Park W. Mgt. Corp. v Mitchell, supra., 47 NY2d, at 328). In this case, respondent has failed to demonstrate that a reasonable person would find the Lechters’ awning to be so intrusive as to render the bedroom unusable or unsafe (New York Univ. v Schurtman, NYLJ, Dec. 15, 1992, at 21, col 1 [App Term, 1st Dept]). Even giving credence to respondent’s claim that the illuminated awning remained on past 10:30 from June 1990 to November 1990, respondent’s position was not demonstrated by the credible evidence.


Other cases have addressed the issue of the cumulative effects of a number of what may be termed “minor” lapses. In one case, the court held that the landlord’s action in firing both a full-time superintendent and a full-time handyman, which led to a failure to provide, at various times, heat, hot water, elevator service, security (by failing to repair a broken front door lock), and garbage collection and disposal, amounted to a breach of the <mask> of habitability. (111 East 88th Partners v Simon, 106 Misc 2d 693; see, also, Concord Vil. Mgt. Co. v Rubin, 101 Misc 2d 625.)


What is. reasonable care depends upon the circumstances of each particular case. When docks are thrown open for the use of the public a general license is conferred upon anybody to use them for all lawful purposes, and where this is done for the purposes of gain there' is an <mask> that the premises are reasonably safe for the purposes for which they were designed.


Under the Uniform Commercial Code, “[d]ogs have been held to constitute ‘goods’ within the meaning of section 2-105 . . . and defendant, a private breeder, is a ‘merchant’ within the meaning of UCC 2-104 (1)” {Appell v Rodriguez, 14 Misc 3d 131[A], 2007 NY Slip Op 50051[U] [App Term, 9th & 10th Jud Dists 2007] [citations omitted]). A dog purchaser may recover damages pursuant to UCC 2-714 on the theory that the defendant breached the <mask> of merchantability (see UCC 2-314; Saxton v Pets Warehouse, 180 Misc 2d at 378; Sacco v Tate, 175 Misc 2d at 902). On the other hand, a third party, such as plaintiff, must demonstrate either privity with the defendant or personal injuries arising from the alleged defect to recover such damages {Adirondack Combustion Tech., Inc. v Unicontrol, Inc., 17 AD3d 825, 827 [2005]; see UCC 2-318; Lexow & Jenkins v Hertz Commercial Leasing Corp., 122 AD2d 25, 26 [1986]). Since plaintiff failed to establish either of these requirements, she cannot recover damages pursuant to UCC 2-714 on the theory that defendant breached the implied warranty of merchantability when he sold the dog to the nonparty purchaser. As the court’s findings and conclusions are supported by the record, we find that the judgment provided the parties with substantial justice according to the rules and principles of substantive law (UCCA 1804, 1807; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]). Accordingly, the judgment is affirmed.