Upon the following papers read on these motions for summary judgment and to strike a pleading: Notice of Motion and supporting papers by defendant The Home Depot, filed December 18, 2018; by plaintiffs, filed December 19, 2018; by defendants R&B Quality Electric, Inc. and Ryan Surdi, filed December 20, 2018; Answering Affidavits and supporting papers by plaintiffs, filed March 20, 2019; by plaintiffs, filed March 29, 2019; by The Energy Firm, LLC, filed February 19, 2019; by R&B Quality Electric and Ryan Surdi, filed March 27, 2019; by defendant The Energy Firm, LLC, filed February 19, 2019; by defendant The Home Depot, filed February 25, 2019; by plaintiffs, filed March 20, 2019; Replying Affidavits and supporting papers by defendant The Home Depot, filed March 27, 2019; by plaintiffs, filed March 21, 2019; by plaintiffs, filed April 1, 2019; by defendants R&B and Surdi, filed March 27, 2019; and by defendants R&B Quality Electric, Inc. and Ryan Surdi, filed on April 1, 2019, it is ORDERED that the motion by The Home Depot, the motion by Robert Ball and Ann Ball, and the motion by R&B Quality Eclectic, Inc., and Ryan Surdi are consolidated for purposes of this determination; and it is further ORDERED that the motion by defendant The Home Depot dismissing the complaint and cross-claims against it is granted in part and denied in part; and it is further ORDERED that the motion by plaintiffs Robert Ball and Ann Ball for an order striking R&B Quality Electric, Inc., and Ryan Surdi’s answer, or, in the alternative, for summary judgment on the issue of liability is denied; and it is further ORDERED that the motion by defendants R&B Quality Electric, Inc. and Ryan Surdi for summary judgment dismissing the complaint and cross-claims against them is denied. This is an action to recover property damages allegedly sustained by plaintiffs Robert Ball and Ann Ball as a result of the negligent installation of solar panels at their home at 54 Hobson Avenue in Saint James, New York. In December 2008, Mr. Ball entered into a contract with defendant The Energy Firm for the installation of solar panels. In May 2009, R&B Quality Electric (“R&B”) installed the solar panels. In the fall of 2011, plaintiffs discovered that water was leaking into their home from the roof. The Home Depot moves for summary judgment dismissing the complaint and cross-claims against it on the grounds that it is not responsible for the negligence of independent contractors, that it did not breach any warranties and that it did not violate General Business Law §§349 and 350. Plaintiff moves to strike R&B and Mr. Surdi’s answer pursuant to CPLR 3126, or, in the alternative, for summary judgment on the issue of liability. R&B and Mr. Surdi move for summary judgment dismissing the complaint and cross claims against it on the ground that they did not have a duty to plaintiffs. The Home Depot has established its prima facie entitlement to summary judgment dismissing plaintiffs’ negligence cause of action by demonstrating, through the submission of evidentiary proof in admissible form, that it was not negligent in the installation of the solar panels on plaintiffs’ home. As a general rule, a party who retains an independent contractor to carry out a task is not vicariously liable for injury to a third party caused by the independent contractor’s negligent acts (Kleeman v. Rheingold, 81 NY2d 270, 598 NYS2d 149 [1993]; Rosenberg v. Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 584 NYS2d 765 [1992]; Pesante v. Vertical Indus. Dev. Corp., 142 AD3d 656, 36 NYS3d 716 [2d Dept 2016]). The evidence demonstrates that the solar panels were installed by R&B, a subcontractor of The Energy Firm, The Home Depot’s independent contractor, without any direct involvement, assistance or supervision by The Home Depot. In light of the foregoing, The Home Depot also established prima facie entitlement to summary judgment dismissing The Energy Firm’s cross-claim for indemnification, and R&B and Mr. Surdi’s cross-claim for contribution. Negligence. In response to The Home Depot’s prima facie showing, plaintiffs failed to raise a issue of fact as to its negligence. Quite apart from the fact that to the extent Ms. Ball, a party to the action, uses her own affirmation, rather than an affidavit, to offer factual averments in support her opposition to The Home Depot’s motion (see CPLR 2106 [a]), the averments she makes and the evidence she offers fail to address any alleged negligence on the part of The Home Depot. The implied warranty of merchantability is a guarantee by the seller that “goods ‘are fit for the intended purpose for which they are used and that they will pass in the trade without objection’” (Fahey v. A.O. Smith Corp., 77 AD3d 612, 617, 908 NYS2d 719, 724 [2d Dept 2010], quoting Wojcik v. Empire Forklift, Inc., 14 AD3d 63, 66, 783 NYS2d 698, 700 [3d Dept 2004]; see UCC 2-314; Saratoga Spa & Bath v. Beeche Sys. Corp., 230 AD2d 326, 656 NYS2d 787 [3d Dept 1997]). The implied warranty of merchantability only applies where a seller is a merchant that holds itself out as having knowledge or skills relating to goods of that kind (see UCC 2-104 [1]; UCC 2-314 [1]; see Simmons v. Washing Equip. Tech., 51 AD3d 1390, 857 NYS2d 412 [4th Dept 2008]). The implied warranty of fitness arises “[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods” (UCC 2-315; see Simmons v. Washing Equip. Tech., supra). Warranties of Merchantability. The Home Depot also established prima facie that it did not breach implied or express warranties of merchantability, as it was outside the chain of the manufacture, distribution and sale of the solar panel materials installed on plaintiffs’ roof (see Tyminskyy v. Sand Man Bldg. Materials, Inc., 168 AD3d 1118, 92 NYS3d 409 [2d Dept 2019]; Quinones v. Federated Dept. Stores, Inc., 92 AD3d 931, 939 NYS2d 134 [2d Dept 2012]). The warranty contained in the December 2008 contract applied only to the workmanship of the installation for 90 days from its completion. The pleadings allege, and the evidence shows, that it was negligent installation of the solar panels that caused the roof to leak, and not any shortcoming in the solar panels or their component parts that rendered them defective, unmerchantable, or unfit for the intended purpose. In opposition, plaintiffs failed to raise a triable issue as to whether The Home Depot breached any warranties. General Business Law Claims. General Business Law §349 (a) provides that it is unlawful to engage “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” To state a cause of action under General Business Law §349, a plaintiff must allege that: (1) the defendant engaged in an act that was directed at consumers, (2) the act engaged in was materially deceptive or misleading, and (3) the plaintiff was injured as a result (Stutman v. Chemical Bank, 95 NY2d 24, 29, 709 NYS2d 892 [2000]; Gaidon v. Guardian Life Ins. Co. of Am., 94 NY2d 330, 343, 704 NYS2d 177 [1999]; Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 NY2d 20, 623 NYS2d 529 [1995]). Pursuant to General Business Law §350, “[f]alse advertising in the conduct of any business, trade or commerce or in the furnishing or any service” is unlawful. False advertising is “advertising, including labeling, of a commodity” which is “misleading in a material respect” (General Business Law §350-a). A plaintiff asserting a claim under this statute must establish that the alleged false advertisement: (1) had an impact on consumers at large, (2) was deceptive or misleading in a material way, and (3) caused injury (Andre Strishak & Assoc. v. Hewlett Packard Co., 300 AD2d 608, 609, 752 NYS2d 400 [2d Dept 2002]; see Koch v. Acker, Merrall & Condit Co., 18 NY3d 940, 944 NYS2d 452 [2012]; DeAngelis v. Timbergpeg East, Inc., 51 AD3d 1175, 858 NYS2d 410 [3d Dept 2008]). The Home Depot failed to establish prima facie entitlement to summary judgment dismissing plaintiffs’ General Business Law §§349 and 350 claims, as it failed affirmatively to demonstrate, by submission of evidentiary proof in admissible form, that it did not engage in consumer-oriented “deceptive acts” within the meaning of General Business Law §349, or that the alleged misleading conduct did not cause actual injury to plaintiffs (cf., Tepper v. Cablevision Sys. Corp., 19 AD3d 585, 797 NYS2d 131 [2d Dept 2005]). Instead, The Home Depot merely asserts that “plaintiff’s own testimony demonstrates [The] Home Depot did not make any representations to the plaintiffs” and that “there is no evidence in this case to support a claim against [The] Home Depot under either of these sections.” This is insufficient to sustain its burden on a motion for summary judgment (see generally Roth v. Barreto, 289 AD2d 557, 735 NYS2d 197; Rebecchi v. Whitmore, 172 AD2d 600, 568 NYS2d 423 [the court's function on a summary judgment motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility]). Accordingly, plaintiffs’ causes of action against The Home Depot for negligence and breach of implied and express warranty, as well as the cross-claims against The Home Depot. are dismissed. Plaintiffs’ Motion to Strike or for Partial Summary Judgment Against R&B and Surdi. Plaintiffs move to strike R&B and Mr. Surdi’s answer pursuant to CPLR 3126 on the ground that their order to show cause to vacate the default judgment against them was supported by an allegedly false affidavit of merit. In the alternative, plaintiffs move for summary judgment on the issue of liability “on the grounds [that] the defense has no merit.” Plaintiffs’ request to strike R&B and Mr. Surdi’s answer is denied. Apart from Ms. Ball’s improperly submitted supporting affirmation (CPLR 2106 [a]), plaintiffs failed to prove that Mr. Surdi’s affidavit in support of the motion to vacate the default judgment was patently false, as, again, the court’s function is not to resolve issues of credibility (see Chimbo v. Bolivar, 142 AD3d 944, 37 NYS3d 339 [2d Dept 2016]). Plaintiffs’ request for summary judgment on the issue of liability is also insufficient, as they failed to set forth any arguments and identify specific evidence demonstrating defendants’ indisputable negligence in installing solar panels on their roof. Accordingly, plaintiffs’ motion to strike or for partial summary judgment is denied. R&B’s and Surdi’s Motion for Summary Judgment. The mere happening of an accident, in and of itself, does not establish the liability of a defendant (Scavelli v. Town of Carmel, 131 AD3d 688, 15 NYS3d 214 [2d Dept 2015]). To establish a prima facie case of negligence under the common law, a plaintiff must demonstrate the existence of a duty owed by defendant to plaintiff, a breach of that duty and resulting injury proximately caused by defendant’s breach of duty (Pasternack v. Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825, 37 NYS3d 750 [2016]; Greenberg, Trager & Herbst, LLP v. HSBC Bank USA, 17 NY3d 565, 934 NYS2d 43 [2011]; Mendez-Canales v. Agnelli Macchine S.R.L., 165 AD3d 646, 85 NYS3d 188 [2d Dept 2018]). Breach of a contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party (Espinal v. Melville Snow Contrs., 98 NY2d 136, 140, 746 NYS2d 120 [2002]; Castillo v. Port Auth. of New York, 159 AD3d 792, 72 NYS3d 582 [2d Dept 2018]; Bryan v. CLK-HP 225 Rabro, LLC, 136 AD3d 955, 26 NYS3d 207 [2d Dept 2016]). There are “three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care — and thus be potentially liable in tort — to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies upon the continued performance of the contracting party’s duties; and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” (Espinal v. Melville Snow Contrs., supra, at 140 [internal quotation marks and citations omitted]). R&B and Mr. Surdi failed to establish their prima facie entitlement to summary judgment, as they failed to demonstrate, through the submission of evidentiary proof in admissible form, that they did not owe a duty to plaintiffs. R&B and Mr. Surdi contend that as R&B was an independent contractor, it merely relied on plans and specifications developed by non-party Pacifico and supplied by The Energy Firm. Generally, “[a] builder or contractor is justified in relying upon the plans and specifications which he has contracted to follow” (Nachamie v. County of Nassau, 147 AD3d 770, 775, 47 NYS3d 58 [2d Dept 2017], quoting Hartofil v. McCourt & Trudden Funeral Home, Inc., 57 AD3d 943, 871 NYS2d 299 [2d Dept 2008]). “A contractor that performs its work in accordance with contract plans may not be held liable unless those plans are ‘so patently defective as to place a contractor of ordinary prudence on notice that the project, if completed according to the plans, is potentially dangerous’” (Nachamie v. County of Nassau, supra at 775, quoting West v. City of Troy, 231 AD2d 825, 647 NYS2d 63 [3d Dept 1996]). In this case, the unsworn reports of Preston Quick and Scott Cameron are inadmissible. The conclusory expert affidavit of Ibrahim Erdem is insufficient to demonstrate that R&B properly installed the solar panels, as he stated that he had limited access to the brackets, bolts and sealant used to attach the solar panels to the roof and that there was “no proof that the solar panels were improperly installed without removal of the solar panels, testing of the brackets[,] and opening ceiling panels.” Further, Mr. Erdem opined that “the portion [he] was able to observe were installed according to the plans,” but he did not reference such plans or state that he reviewed such plans. Accordingly, the motion by The Home Depot is granted in part and denied in part, the motion by plaintiffs is denied, and the motion by R&B and Mr. Surdi is denied. _X_ NON-FINAL DISPOSITION__ FINAL DISPOSITION Dated: 10/27/2020
