State University Construction Fund v. Kipphut & Neuman Co.

— Order affirmed, without costs. All concur, Simons, J., not participating. Memorandum: Although Kewaunee Scientific Corporation is a contractor bound by, and entitled to, the benefit of the subrogation waiver clause, it is also a manufacturer and, under the exclusionary clause, it is subject to suit for damage caused by alleged defects in the materials it furnished under its contract. The only claimed basis for recovery against the defendant Kipphut and Neuman was because of its defective workmanship in providing and installing the wrong size nipple, not because of any defect in materials supplied under its contract. Thus, it did not fall within the exclusionary clause. The motion of Gardner Construction Company was properly denied since it presented insufficient evidence of its status as a party entitled to the benefit of the subrogation waiver clause. (Appeals from order of Supreme Court, Erie County, Stiller, J. — summary judgment.) Present — Dillon, P. J., Simons, Doerr, Boomer and Moule, JJ.