Levin v. Hoffman Fuel Co. , 94 A.D.2d 640 ( 1983 )

— Order, Supreme Court, New York County (McCooe, J.), entered March 24, 1982, which granted defendant’s motion to dismiss the complaint on the ground that it is barred by the Statute of Limitations, affirmed, with costs. As detailed in the complaint, the allegations of which are deemed true on a motion to dismiss, the defendant Hoffman Fuel Company (Hoffman) agreed to supply heating fuel oil to plaintiffs’ residence in Carmel, New York, on an automatic delivery basis, and in late December, 1975 Hoffman breached its agreement by permitting the oil supply to run out. As a consequence, the water in the heating system froze, causing substantial damage to the heating system and additional damage to the house. Although the record is somewhat confusing as to when this action was commenced, both parties appear to accept Special Term’s conclusion that it was commenced on December 21, 1981, or just less than six years after the claimed breach. Defendant moved to dismiss the complaint alleging that the agreement was essentially one for the sale of goods, was accordingly controlled by the four-year Statute of Limitations set forth in subdivision (1) of section 2-725 of the Uniform Commercial Code and that the action was therefore untimely. Special Term granted the motion to dismiss in the order appealed from, and we agree. In evaluating whether the violation of a contract providing both for the sale of goods and for the furnishing of services is controlled by the four-year Statute of Limitations set forth in the Uniform Commercial Code or the six-year contractual Statute of Limitations in CPLR 213 (subd 2), the test established by controlling authority is whether the agreement is “predominantly” one for the sale of goods or for the providing of services. (Perlmutter v Beth David Hosp., 308 NY 100, 104; Schenectady Steel Co. v Trimpoli Gen. Constr. Co., 43 AD2d 234, affd on other grounds 34 NY2d 939; see Burton v Artery Co., 279 Md 94; Applicability of UCC Article 2 to Mixed Contracts for Sale of Goods and Services, Ann., 5 ALR4th 501; but see 1 Williston, Sales [Squillante & Fonseca, 4th ed], § 5-6.) Although the defendant’s promise to provide the oil on an automatic basis was undoubtedly important to the plaintiffs, and may conceivably have been an inducing factor in their entering into the agreement with Hoffman, we think it sufficiently free from doubt that the agreement was essentially one for the sale of oil, to which the promised service, however important, was incidental. As to the conclusion reached in the dissenting opinion that factual issues are presented which require a hearing on the intention of the parties, we note the fundamental principle that where the terms of a contract are clear and unambiguous, its construction, including the intent of the parties as expressed in the agreement, involves questions of law for the court to determine. (10 NY Jur, Contracts, §§ 190, 193.) We perceive no ambiguity in the agreement at issue here. There may be agreements in which it is difficult to determine from the face of the agreement whether the sale of goods or the promise to provide service is predominant, and as to which surrounding circumstances may be decisive in resolving that question. (Cf. Farm Automation Corp. v Senter, 84 AD2d 757, 758; Curtis Pub. Co. v Sheridan, 53 FRD 642 [USDC, SDNY].) The agreement with which we are here concerned does not present that problem. Concur — Sandler, J. P., Ross, Fein and Kassal, JJ.