R.W. Kern, Inc. v. Circle Industries Corp.

—Order, Supreme Court, New York County (Burton S. Sherman, J.), entered January 15, 1991, which denied the motion by plaintiffs for summary judgment, unanimously affirmed, with costs. Plaintiffs sought to recover damages premised upon breach of contract and breach of warranty against defendant Circle, a flooring installation company, in connection with the installation by defendant Circle of defective parquet wood floor tiles, manufactured by Sykes Flooring Company, in a residential apartment building owned by plaintiffs. Upon examination of the record, we find, as did the IAS court, that the plaintiffs’ present motion for summary judgment is precluded by the prior reversal and remand of the underlying action for a new trial by this Court in R. W. Kern, Inc. v Circle Indus. Corp. (158 AD2d 363). On the prior appeal, we specifically found that plaintiffs’ reliance on defendant’s recommendation of Sykes tiles, and defendant’s knowledge that Sykes tiles were unfit, are both questions that should have been submitted to the jury. Plaintiffs have presented no substantive evidence entitling them to a judgment, as a matter of law, that defendant Circle breached its duty of fair dealing, nor presented a viable reason for this Court to depart from its prior ruling, where the record is replete with factual disputes as to whether defendant Circle breached its duty of fair dealing merely because it did not disclose to the plaintiffs all the facts defendant Circle knew concerning the develop [516] ment and manufacture of the Sykes tiles, and as to when, if ever, during the installation thereof, . defendant Circle breached its duty of fair dealing (Pernet v Peabody Eng’g Corp., 20 AD2d 781, 782). Finally, contrary to the plaintiffs’ assertions, we have not limited the reversal and remand of the underlying action solely to the issue of liability, but rather have similarly remanded for a determination on damages (R.W. Kern, Inc. v Circle Indus. Corp., supra, at 363). We have reviewed the plaintiffs’ remaining contentions, and find them to be without merit. Concur—Sullivan, J. P., Milonas, Ross, Kassal and Rubin, JJ.