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Docteroff v. Barra Corp. of America

June 21, 1995

NORMAN DOCTEROFF AND CORINA DOCTEROFF, PLAINTIFFS-APPELLANTS,
v.
BARRA CORPORATION OF AMERICA, INC., BRAAS SYSTEMS, INC. AND "JOHN DOE," DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Morris County.

Approved for Publication June 21, 1995

Before Judges Stern, Keefe and Humphreys. The opinion of the court was delivered by Stern, J.A.D.

The opinion of the court was delivered by: Stern

STERN, J.A.D.

Plaintiffs claimed that their roof leaked and was in need of repair before the expiration of a written five-year guarantee. After defendant Barra Corporation of America (Barra) declined to remedy the problem, plaintiffs commenced this action. The trial Judge granted summary judgment on the ground that plaintiffs' suit was barred by the four-year statute of limitations in the Uniform Commercial Code (UCC), N.J.S.A. 12A:2-725. Plaintiffs appeal.

We agree with the motion Judge that this case is governed by the four-year UCC statute of limitations, N.J.S.A. 12A:2-725, and not the six-year statute governing contract claims, N.J.S.A. 2A:14-1. However, the warranty here explicitly extended to future performance and therefore under the circumstances the statute of limitations did not begin to run until the breach was or should have been discovered. See N.J.S.A. 12A:2-725(2).

The facts are unclear as to whether this suit was brought within four years after the breach was or should have been discovered. Hence, summary judgment should not have been granted in favor of the defendant guarantor.

I.

Plaintiffs purchased their home on January 17, 1985. The roof had been installed in the fall of 1981 by the prior homeowners. Barra had supplied the roofing material to the installing contractor, and gave the owner, Helene Kessler, a written five-year "Guarantee" dated November 3, 1981. *fn1 The "Guarantee" stated, in part:

Barra Corporation of America (hereinafter Barra) guarantees that Braas Rhenofol plastic roof sheets, roof covers and Braas Rhenofol roofing system accessories will maintain the roof of the following structure:

Kessler Residence

[address]

In a watertight condition at Barra's expense for (5) five years from the date hereof.

This guarantee covers only those defects occurring during the term of the guarantee and which defects are due to defective Braas Rhenofol material and/or Braas Rhenofol roofing systems accessories, or which defects originate from defective workmanship. It shall be at Barra's obligation to repair such defects or, at Barra's option, replace such defective material at no charge to the owner for labor and material. Any such repair or replacement shall be done by a licensed Barra applicator.

THIS GUARANTEE IS IN LIEU OF ALL OTHER WARRANTIES OR GUARANTEES WHETHER EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

[(Emphasis added.)]

For purposes of our review of the grant of summary judgment, we must accept plaintiffs' factual contentions. Plaintiffs assert that, upon discovery of the roof leaks, they first notified Barra by telephone on September 17, 1985, and notified it on numerous occasions thereafter. When defendants' attempts to fix the roof failed to remedy the problem, plaintiffs hired an independent roofing expert who reported in June 1986 that there were various "problems" which would fall under the "manufacturer's warranty," including "fasteners are above the roof plane in various areas," "metal splicing is severely bridging and in some areas cracking," and "mechanical terminations are missing from wall details." "Membrane failure" and "metal failure" were also noted. This expert attributed no reason or cause for these "items of major concern," and concluded:

The repairs... recommended are fairly extensive and in [our] estimation would entail reroofing 30% of the roof area.

This roof's usable life is coming to a close. Over the course of time problems will certainly occur at an accelerated rate. This roof ...


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