Opinion
No. SC–15–23.
06-12-2015
Eric SOLECKY, Plaintiff, v. O'DONNELL & SONS, INC., Defendant.
Eric Solecky, Hopewell Junction, Plaintiff, pro se. Robert Boolukos, Esq., Fishkill, Attorney for the defendant.
Eric Solecky, Hopewell Junction, Plaintiff, pro se.
Robert Boolukos, Esq., Fishkill, Attorney for the defendant.
Opinion
FRANK M. MORA, J.
Plaintiff is suing defendant for $5,000, said sum representing costs to repair the poor workmanship performed by defendant in constructing his new home. The plaintiff proceeded pro se and the defendant was represented by Robert Boolukos, Esq. A small claims trial was held on February 13, 2015, and continued on March 9, 2015. The plaintiff testified on his own behalf. Sean O'Donnell, President of O'Donnell & Son's, Inc., and Michael Pulcastro, testified for the defendant. Now, having duly deliberated upon the facts and evidence presented, the Court finds and determines the matter as follows:
FACTS & ARGUMENT
On December 8, 2012, plaintiff entered into a written contract with defendant to build a new home at 30 Lees Way, Hopewell Junction, New York for approximately $700,000. Defendant's Exhibit A. A limited warranty accompanied the purchase of the home which specifically excludes all other warranties on the construction and sale of the home and its components, both express and implied. Plaintiff's Exhibit 13. This warranty provides that once plaintiff moved into the home or accepted the deed, the builder's responsibility was limited. Plaintiff performed a final inspection of the home before closing on October 11, 2013, and provided a punch list of items for defendant to repair and/or complete. Defendant's Exhibit B. These punch list items were repaired and/or addressed on or about October 13, 2013, plaintiff signed off on them, and never contacted defendant again about them. Defendant's Exhibit C. About one year later, on October 10, 2014, plaintiff mailed a notice of warranty claim form, dated October 6, 2014, seeking to preserve his rights under the builder's limited warranty before it expired. The claim form detailed the defective materials and labor that plaintiff sought to have defendant repair or replace. Plaintiff's Exhibit 2. Plaintiff claims that the defendant failed to repair or replace these things and now seeks to recover the costs he will incur to repair the defects in materials and workmanship as a result of defendant's failure to cure. At trial, plaintiff testified about the defects he seeks damages for and supported his claim by introducing photographs and estimates. Plaintiff introduced two (2) itemized estimates : 1) Jeff Eckes Local Dad Repairs totaling $6,254.81 (Plaintiff's Exhibit 3); and 2) R Grey N Sons Custom Carpentry & Design totaling $33,219.13. Plaintiff's Exhibit 4.
Plaintiff testified that he spent approximately $800,000. The contract is for $649,000, plus an addendum of additional costs in the amount of $69,400, for a total of $718,400.
Although plaintiff introduced a third estimate from W.M. Ercoli in the amount of $13,650 (Plaintiff's Exhibit 2, last page ), this estimate does not provide an itemized list of the repairs, thus making its introduction futile in assessing or supporting plaintiff's claim for damages.
In opposition, Mr. O'Donnell testified that he has been building homes for more than thirty (30) years and he has never been given a punch list as long as the one plaintiff provided. He testified that upon completing the list, plaintiff continued to provide him with a never ending list of repairs. Mr. O'Donnell further testified that he tried to rectify plaintiff's complaints and has always responded to plaintiff's issues. In particular, he returned to repair the master bathroom and planned to return in the spring, but plaintiff was too impatient to wait until spring for him to finish the additional repairs. Mr. O'Donnell testified that he never shirked his responsibility in arranging to make necessary repairs. Even up to and during the trial, Mr. O'Donnell sent a workman to address plaintiff's complaints, but plaintiff refused defendant entry. Defendant also claims that he is not responsible for all of the things plaintiff seeks to have repaired because some of his claims are excluded by the contract and its limited warranty. Defendant's Exhibit A, ¶ 42.
42. GUARANTEES AND WARRANTIES: THE SELLER MAKES NO HOUSING MERCHANT IMPLIED WARRANTY OR ANY OTHER WARRANTIES, EXPRESS OF IMPLIED, IN CONNECTION WITH THIS CONTRACT OR THE HOME, AND ALL SUCH WARRANTIES ARE EXCLUDED, EXCEPT AS PROVIDED IN THE LIMITED WARRANTY ANNEXED TO THIS CONTRACT. THE EXPRESS TERMS OF THE LIMITED WARRANTY ARE HEREBY INCORPORATED IN THIS CONTRACT, AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FACE THEREOF. THE BUYER ACKNOWLEDGES THAT A WRITTEN COPY OF THE TERMS OF THE LIMITED WARRANTY HAS BEEN PROVIDED FOR THE BUYER'S EXAMINATION PRIOR TO THE TIME OF THE BUYER'S EXECUTION OF THIS CONTRACT. THE SELLER WARRANTS THAT THE HOME WILL MEET OR EXCEED THE STANDARDS OF WORKMANSHIP AND MATERIALS RELATIVE TO THE INDUSTRY AS IT CURRENTLY EXISTS IN THE MID–HUDSON VALLEY. THE EXPRESS TERMS OF THE LIMITED WARRANTY ARE HEREBY INCORPORATED INTO THIS CONTRACT, AND ARE ATTACHED HERETO, AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FACE THEREOF. THE BUYER ACKNOWLEDGES THAT A WRITTEN COPY OF THE TERMS OF THE LIMITED WARRANTY HAS BEEN PROVIDED FOR THE BUYER'S EXAMINATION PRIOR TO THE TIME OF THE BUYER'S EXECUTION OF THIS CONTRACT. HOWEVER, THIS WARRANTY SPECIFICALLY EXCLUDES THOSE ITEMS AS SET FORTH IN THE LIMITED WARRANTY DOCUMENTS ATTACHED HERETO, AND FURTHER EXCLUDES THE SELLER'S RESPONSIBILITY FOR THE FOLLOWING, AFTER TRANSFER OF TITLE ....
Set forth below are only the claims meeting three (3) conditions: 1) Plaintiff testified about these claims at trial; 2) Either two (2) estimates or a paid receipt in support of the damages was introduced; and 3) These claims were included in plaintiff's warranty claim form mailed to the builder on October 10, 2014–a prerequisite to filing a lawsuit per the limited warranty terms:
1) •Deck. “Underneath the wood deck at the rear of the home, the joists framed into the north/south header were attached by toe-nails only (no joist hangers). At the edge of the deck, it was noted that the 6x6 posts did not appear to be attached to the precast concrete footings below. The wood posts supporting the deck did not appear to be on standoffs to separate the wood from the concrete. The wood posts were not uniformly supported by the footings, since the footings had openings in their tops apparently sized for smaller posts. The stones used to construct the flagstone landing at the foot of the deck steps appeared to be shifting and settling.” Plaintiff's Exhibit 2 & 7.
Plaintiff introduced two (2) estimates to repair these defects including 1) Jeff Eckes for $1,286.55 (Plaintiff's Exhibit 3 ); and 2) R Grey N Sons Custom Carpentry & Design totaling $393.84. Plaintiff's Exhibit 4.
At trial, Mr. O'Donnell conceded that the joist brackets need to be added, but that a simple screw would fix the wood jutting out, and contends that the estimates provided by plaintiff are inflated. Mr. O'Donnell estimated that the deck repairs would take less than 20 minutes with minimal costs in materials, but did not testify to a value for the labor or materials. Mr. O'Donnell disputes that there was anything wrong with the flagstone landing and contends that the footings for the wood posts are precasted and properly installed.
2) •Repair mortar between bricks. “At the front of the home, which had a brick veneer, at least one window sill had enough mortar missing that would allow rain to penetrate to the space behind the brickwork, and a brick above appeared to be cracked. Also at the front, the second mortar joint above the decorative roof extension over the inner window appeared to have no mortar, assuming this is not a lintel location.” Plaintiff's Exhibit 2.
Plaintiff had this all repaired by Tim Morgan & Son for $500 and provided a paid receipt and photograph. Plaintiff's Exhibit 10. Defendant introduced no evidence to refute its liability with respect to this claim.
3) •Tub is cracked. “There was a crack along the top rim of the tub in the master bathroom.” Plaintiff's Exhibit 2.
Plaintiff provided a photograph of the crack in the new tub installed (Plaintiff's Exhibit 11 ) together with two estimates for its removal and replacement at a cost of $1,995 (Plaintiff's Exhibit 3 ) and $1,718 (Plaintiff's Exhibit 4 ). Defendant introduced no evidence to refute its liability with respect to this claim.
4) •Creaking floor in master bedroom. “The floor was creaking beneath the carpeting in the master bedroom throughout the space. As represented, the floor had been previously repaired, but the creaking extends beyond the repaired area.” Plaintiff's Exhibit 2.
Plaintiff hired Ross Pizzuti to repair the creaks in the floor for $150 and introduced proof of payment. Plaintiff's Exhibit 12. Defendant introduced no evidence to refute its liability with respect to this claim.
5) •Repairs to the basement foundation. “In the basement, hairline cracks were seen on the poured concrete foundation walls at five locations.” Plaintiff's Exhibit 2.
Plaintiff provided photographs of the hole and cracks in the foundation (Plaintiff's Exhibit 5 ) together with two estimates for its repair at a cost of $76.31 (Plaintiff's Exhibit 3 ) and $2,200 (Plaintiff's Exhibit 4 ). Defendant contends that these prices are inflated. Mr. O'Donnell conceded that the large hole in the foundation needed to be repaired and that he was responsible for same, but contends that such repairs would only cost approximately $50. Defendant claims the cracks in the foundation fall outside the warranty.
6). •Masterbath. “The water drips from the sill/door installation onto the bathroom floor, indicating either a poor seal or improperly pitched sill, As represented, this drip has caused damage to the nearby baseboard and flooring.” “Ceramic tile grout was missing at the tub/wall joint in the master bathroom. As represented, this is typical of all wall/fixture joints in all three 2nd floor bathrooms.” Plaintiff's Exhibit 2.
Although defendant attempted to correct this, plaintiff claims the shower is still leaking. Three estimates to repair these defects include 1) Mike Critchley for $2,385 (Plaintiff's Exhibit 6 ); 2) R Grey N Sons for $806 (Plaintiff's Exhibit 4, Sheet 4); and 3) Jeff Eckes for $557.91 .
$243.60 + $148.06 + $166.25 = $557.91
In opposition, Mr. O'Donnell testified that these things were repaired in or around February 2015, and recently tried to return again having heard plaintiff testify at trial about ongoing issues in the master bath, but plaintiff refused defendant entry to repair them. Defendant also contends that the photos (Plaintiff's Exhibit 6 ) are an unreliable depiction of the current condition of the shower, but rather depict what the shower looked like prior to defendant's repairs. On cross-examination plaintiff could not clarify when the photos were taken. In particular, he could not state if they were taken before or after defendant repaired the shower.
7) •1st Floor Hardwood floors. “The hardwood flooring exhibited noticeable creaking, especially adjacent to the kitchen island. Cupping was observed in the hardwood flooring in the corridor leading to the kitchen from the front entry area. Dime-size dents were noted in the breakfast area hardwood flooring. Dime-size dents were also seen on the hardwood flooring in front of the fireplace in the family room. There was building process residue adhering to the hardwood floor at miscellaneous locations, particularly at the wall/floor joint. As represented, cracks and discoloration have been observed on the fireplace mortar.” Plaintiff's Exhibit 2 and 8. “There are paint stains that cannot be removed because no finish was put on the floors and dings in the floor boards from a laborer hammering on the floor.” Plaintiff's Exhibit 8.
Plaintiff introduced only one estimate to repair the wood flooring, which was R Grey N Sons Custom Carpentry & Design totaling $20,384.80. Plaintiff's Exhibit 4.
The monetary jurisdiction of this Court is limited to $5,000. U.C.C.A. § 1801.
At trial, defendant denied any defects in the hardwood materials provided or the installation of the wood flooring. In support of same, Michael Pulcastro testified for the defendant. He was hired by defendant as a subcontractor to install the wood flooring in plaintiff's home. He has operated a wood flooring business for seventeen (17) years, and testified that based upon his training and experience the gapping in the flooring is normal. He explained that moisture dries out the wood flooring which creates gaps and that it is normal for the gaps to reach the size of a quarter in New York State's environment. Mr. Pulcastro testified that he tried to minimize the shrinkage in plaintiff's flooring by leaving the wood resting in the home for three (3) days prior to its installation in an effort to allow it to acclimate to the home's environment. Mr. Pulcastro introduced literature which further explains how in the winter, new hardwood floors expand and contract based upon seasonal changes in moisture and that even though the hardwood is no longer living and growing it still can take on and lose moisture with the changes in humidity. Defendant's Exhibit D. Finally, Mr. Pulcastro testified that Mr. O'Donnell had asked him to return to the home because of plaintiff's complaints of gapping on the second floor of the home. Although Mr. Pulcastro's professional opinion was that the wood flooring would have expanded in the spring and eliminated the gaps, he removed all the boards, reinstalled, and sanded them again. Defendant did not introduce any evidence to refute its liability with respect to the dents in the wood flooring.
LEGAL ANALYSIS AND DETERMINATION
Plaintiff has sufficiently set forth evidence of defendant's unworkmanlike service on some of its claims thereby imposing liability on the defendant for the following: the deck, mortar between the bricks, the tub, the master bedroom floor, and the hole in the basement's foundation. The general rule of law is that professionals who hold themselves out to be experts providing a service, shall do a reasonable job in a workmanlike manner. Kanarek v. Mannie & Al's Service Station, 123 Misc.2d 221 (Kings County 1984) ; Lunn v. Silfies, 106 Misc.2d 41 (Alleghany County 1980). This is not to say that a consumer should expect infallibility. Milau Assoc. v. North Ave. Development Corp., 42 N.Y.2d 482 (1977). Rather, “reasonable expectations, not perfect results in the face of any and all contingencies will be ensured under a traditional negligence standard of conduct. In other words, unless the parties have contractually bound themselves to a higher standard of performance, reasonable care and competence owed generally by practitioners in the particular trade or profession defines the limits of an injured party's justifiable demands (e.g., Aegis Prods. v. Arriflex Corp. of Amer., 25 A.D.2d 639 (1st Dept.1966) [recognizing that in cases where the service is performed negligently, the cause of action accruing is for that negligence', and if it constitutes a breach of contract, the action is for that breach'] ).” Milau Assoc. v. North Ave. Development Corp., supra. A warranty of workmanlike performance imposes only that degree of care and skill that a reasonably prudent, skilled and qualified person would have exercised under the circumstances, or an implied warranty of competence and ability ordinarily possessed by those in the profession. Milau, supra at 488 [citations omitted].
Here, the contract is signed by the parties, and the limited warranty provides for recovery of defective workmanship and defective materials if a notice of warranty claim form is filed within the first year of basic coverage. Other than insinuation and conjecture, however, there was no evidence introduced at trial to refute the testimony that plaintiff timely and properly filed the notice of warranty claim form with the builder.The filing of the form is critical to this Court's analysis because the limited warranty provides that in order for this Court to have subject matter jurisdiction, plaintiff must first timely file the form with the builder. Plaintiff's Exhibit 13, ¶ s 7–8. Since there were no credible facts introduced in evidentiary form to refute plaintiff's timely filing, this Court finds that subject matter jurisdiction was conferred upon it.
There was no evidence introduced to refute plaintiff's claim that he timely filed the warranty claim form.
Moreover, the Court finds that the limited warranty within the contract is enforceable as it complies with the law insofar as it is conspicuously highlighted, with it being capitalized and underlined. Defendant's Exhibit A; U.C.C. § 2–316 ; Arnold v. New York City Condominiums Corp., (2d Dept.1980) appeal dismissed 53 N.Y.2d 604, appeal dismissed 53 N.Y.2d 823.
This Court now turns to each of plaintiff's itemized claims relying upon its powers conferred to it by statute requiring this Court to adjudicate small claims matters in such a manner as to do “substantial justice between the parties according to the rules of substantive law and is not bound by statutory provisions or rules of practice, procedure, pleading or evidence.” U.C.C. Act § 1804. This Court has weighed the principles of law set forth above, together with the principle that the party bringing the small claim has the burden of proof and may not obtain a judgment unless he has demonstrated a prima facie case of liability on the part of the other party. Tedeschi v. Crocker, 23 Misc.3d 1134(A); 889 N.Y.S .2d 508 (Poughkeepsie City Court 2009) ; Sanders v. Hudson Valley Federal Credit Union, 23 Misc.3d 1134(A); 889 N.Y.S.2d 507 (Poughkeepsie City Court 2009) ; Bowen v. Dunn, 306 A.D.2d 929 (4th Dept.2003). Having duly considered all of these things, the Court finds that the plaintiff has met its burden of proof and has sufficiently established damages as to the following claims:
1) Deck. The necessary repairs to the deck that were, in part, conceded by the defendant, and supported by the evidence presented are the only defective claims this Court finds plaintiff is entitled to recover. As such, plaintiff is awarded $840. 20 on this claim.
The average of the two (2) estimates.
2) Repair mortar between the bricks. The claim falls within the limited warranty coverage in that defective materials, workmanship, and design were provided by the builder-all of which carries a one (1) year basic coverage warranty. Plaintiff's Exhibit 13, ¶ (4)(a-c). Moreover, plaintiff has presented sufficient evidence of liability and damages in the amount of $500 and defendant has introduced no evidence to refute this evidence. Plaintiff is entitled to recover $500.
3) The tub is cracked. Defendant has introduced no opposition to the evidence introduced and the Court finds that the claim falls within the terms of the limited warranty in that defective materials were provided by the builder which carries a one (1) year basic coverage warranty and that installation of the tub violated the warranty in that defendant should not have installed a product that was defective. Plaintiff's Exhibit 13, ¶ 4(b). Plaintiff is entitled to recover $1,856.50.
The average of the two (2) estimates.
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4) Creaking floor in master bedroom. Defendant has introduced no opposition to the evidence introduced and the Court finds that the claim falls within the terms of the limited warranty in that the builder provided defective workmanship in installing the floor. Plaintiff's Exhibit 13, ¶ 4(a). Plaintiff is entitled to recover the $150 it incurred in repairing this defect.
5) •Repairs to the basement foundation. Plaintiff has introduced sufficient evidence of the need for repairs to the hole in the basement foundation, and Mr. O'Donnell concedes his responsibility. Toward this end, based upon the credible evidence presented, substantial justice is met by awarding the plaintiff $76.31 in damages for the repairs associated with filling this hole.
As far as plaintiff's claim concerning the cracks in the foundation for which plaintiff seeks to recover damages, this Court finds that same is excluded from coverage pursuant to the terms of the contract and the limited warranty. Defendant's Exhibit A, ¶ 42(11); Plaintiff's Exhibit 13, ¶ 5(p)(11).
The following claims are dismissed on the grounds that the plaintiff has failed to establish with credible and legally sufficient evidence liability and damages for the following:
6) Master bath shower leaking. The defendant repaired the shower and the plaintiff introduced photographs that this court finds does not present credible evidence or a reliable representation of the condition of the shower after defendant repaired the shower. See, JD Sports, Inc. v. D'Amico, 19 Misc.3d 134A (2d Dept.2008). It is well settled that the deference normally afforded to trial court's credibility determinations, “applies with greater force” in a small claims action. Srinivasan v. Silvi, 19 Misc.3d 138A (2d Dept.2008).
7) 1st Floor hardwood floors. The court need not reach the issue of liability, as the plaintiff introduced only one (1) estimate, and thus failed to meet its burden of proof in establishing a prima facie case of the reasonable value and necessity of such services and repairs. U.C.C. § 1804.
THEREFORE, based upon all of the foregoing, it is now,
ORDERED, that the judgment is granted in favor of the plaintiff in the amount of $3,423.01.