
    William C. Constable, Jr., Plaintiff, v. White Motor Corporation et al., Defendants. (Action No. 1.) McCasland Leasing Corp., Plaintiff, v. Colonie Truck Sales, Inc., et al., Defendants. (Action No. 2.)
    Supreme Court, Special Term, Albany County,
    December 16,1970.
    
      Morris Marshall Cohn for plaintiff in Action No. 1. Carter $ Conboy for Colonie Truck Sales, Inc., defendant. Ainsivorth, Sullivan, Tracy & Knauf for plaintiff in Action No. 2.
   John H. Pennook, J.

There are two motions before the court at Special Term, each of which prays for an order of dismissal of the causes of action on the ground that they are barred by the Statute of Limitations. (CPLR 3211.) The two actions have not been joined or consolidated for trial.

The first cause of action was seeded on May 22, 1967, when the plaintiff, William C. Constable, Jr., while in the employ of McCasland Leasing Corp., the plaintiff in the second cause of action, was the operator of a tractor truck when he alleges it went out of control, left the highway, and an accident resulted, all of which caused him injury to his person. Thereafter on April 3, 1970, this action was commenced. The tractor involved was purchased from Colonie Truck Sales, ■ Inc., one of the defendants in both actions.

The second cause of action arises from the same alleged facts and the plaintiff is the McCasland Leasing Corp. This action was commenced on April 17, 1970, against Colonie Truck Sales, Inc.

Apparently the other defendant, the manufacturer of the tractor, has not moved on this motion for a dismissal. However, it is axiomatic that the .same result would be reached if it had moved, particularly if there is no expressing warranty extending the statute beyond the four-year period. Perhaps it would be best to permit this action to survive the motion in respect to the defendant, White Motor Corporation.

The second canses of action in each of the two actions are dismissed based upon the statutory provision of section 2-725 of the Uniform Commercial Code which provides for a four-year limitation. This determination follows the Court of Appeals case of Mendel v. Pittsburgh Plate Glass Co. (25 N Y 2d 340). The motion before the court concerns very specifically the reference in subdivision 2 of section 213 of the CPLB which was added to that section and effective September 1, 1966, i.e. the inclusion of the reference to the Uniform Commercial Code. (CPLB 213, subd. 2; also, see, The Sales Statute of Limitations in the Uniform Commercial Code — Does it Preclude Prospective Implied Warranties, 37 Fordham L. Rev., 247.) As I see it the Uniform Commercial Code, as of September 27, 1964, specifically expresses a four-year Statute of Limitations in breach of warranty cases, expressed or implied, and the critical date of measurement to compute the four years is the date of sale or delivery of the merchandise which is the subject of the breach.

The motions are granted.  