Rosenberg v. Saratoga Springs Authority , 1 A.D.2d 832 ( 1956 )

In an action to recover damages for personal injuries based on the breach of an implied warranty of fitness for use, the appeal is from an order which grants respondent’s motion to strike from the answer a separate defense alleging that the cause of action set forth in the complaint is one sounding in tort and that the Court of Claims has exclusive jurisdiction thereof, and which order denies a cross motion to dismiss the complaint on the ground that the Supreme Court does not have jurisdiction of the subject matter of the action. Order reversed, with $10 costs and disbursements, motion to strike out the separate defense denied and cross motion to dismiss the complaint granted, without prejudice to the institution of an action in the Court of Claims. It is our view that a cause of action for personal injuries resulting from the breach of the statutory implied warranty that goods sold for a particular purpose are reasonably fit for that purpose (Personal Property Law, § 96) is one sounding in tort within the purview of section 1306-a of the Public Authorities Law and that the Court of Claims accordingly has exclusive jurisdiction thereof. The-courts have uniformly referred to such causes as being based on violation of a statutory duty owing to another and as resting upon a tortious act. (Blessington v. McCrory Stores Corp., 305 N. Y. 140; Greco v. Kresge Co., 277 N. Y. 26; Ryan v. Progressive Grocery Stores, 255 N. Y. 388.) In a contract such as this there are in effect duties of a dual nature, some with a consensual basis and others imposed by law on the relationship which the parties have created between themselves; while the breach of the first alone is not necessarily tortious, a breach of the latter is. Wenzel, Acting P. J., Beldock, Murphy, Ughetta and Hallinan, JJ., concur.