Opinion
NSC 467/05.
Decided July 5, 2006.
Representation: Charles Dennis Zyburo, plaintiff pro se, Yaphank, New York, 631-205-0882, 239-514-1078, Bristled Five Corporation Development: Pinewood Manor, by Malcolm Koubel, pro se, Huntington Station, New York.
Plaintiff homeowner sues for damages arising out of alleged defective craftsmanship on a model home purchased from defendant based on a breach of contract claim.
Plaintiff Zyburo rented and purchased a model home, 7 Monterey Lane in Yaphank, NY, from defendant Bristled Five Corporation, d/b/a Pinewood Manor under an "as is" agreement. Plaintiff submitted a form contract of sale dated July 13, 2000, which was modified to reflect the actual date of September 8, 2000.
The September 8, 2000 purchase agreement contained the following warranty:
29. WARRANTY: The Housing Merchant Implied Warranty of NYS General Business Law, will apply to this agreement. The seller makes no other warranties, express or implied, in connection with this agreement or the home, and all such other warranties are excluded.
Subsequently, the parties modified the September 8, 2000 agreement by the agreement dated December 11, 2000 which provided the following:
1. The purchaser will enter into possession on the 2nd day of December, 2000.
2. That in permitting the Purchasers to move into said premises before closing of title, the Purchasers are moving in as squatters and trespassers under no claim of title or ownership by and between the Sellers and Purchasers by the Purchaser's taking such possession.
3. Notwithstanding the Contract or Option provisions, Purchasers have inspected the premises and agree to accept the same "as is" as of the date of taking possession. Their taking possession will constitute a waiver of any objections to the physical condition of the premises. Any subsequent repairs which are necessary, including any to the plumbing, heating and electrical systems and appliances, but not limited to these items, will be taken care of by Purchasers at their own cost.
Thus the new agreement attempted to repudiate the new home owner warranty protections with an "as is" clause with no warranties.
Plaintiff arranged to rent the property under the December 11, 2000 agreement because they could not, at the time of contract, afford to close. Plaintiff submitted various punch lists to defendant, which included the cracks on the porch. Plaintiff closed on the home and subsequently received the deed on July 2, 2001, after renting the home from defendant for approximately eight months.
Plaintiff commenced the instant small claims action against Bristled Five Corporation alleging that they did not repair hairline cracks in the porch foundation of their "new home" as per their submitted punch lists. Defendant defers to the "as is" contract and asserts that, although they completed some work listed on some punch lists, it was done as a favor, not mandated by the contract, and was not done on a "new home." Moreover, defendant claims that the hairline cracks in the porch foundation are within code as they are normal settling cracks and less than one quarter inch in width.
As per Article 36-B of the General Business Law § 777 providing warranties on the sale of new homes:
5. "New home" or "home" means any single family house or for-sale unit in a multi-unit residential structure of five stories or less in which title to the individual units is transferred to owners under a condominium or cooperative regime. Such terms do not include dwellings constructed solely for lease, mobile homes as defined in section seven hundred twenty-one of this chapter, or any house or unit in which the builder has resided or leased continuously for three years or more following the date of complete of construction, as evidenced by a certificate of occupancy.
The court finds that the house (completed in 1998) comes within the definition of a new home because the home was not leased continuously for three years or more, not resided in by the builder, not constructed solely for lease, and not a mobile home, as the plaintiff rented same for approximately eight months before purchase.
The issue thus becomes whether or not the "as is" lease provision noted in the December 11, 2000 agreement exempts the defendant from the Housing Merchant Implied Warranty of the September 8, 2000 agreement and complies with New York General Business Law § 777-b.
Defendant attempted to limit modify the Housing Merchant Implied Warranty by including an "as is" provision in the agreement. Under NY General Business Law § 777-b, the statutory Housing Merchant Implied Warranty may be excluded or modified by the builder of a new home only if the buyer is offered a limited warranty that meets or exceeds statutory standards. Latiuk v. Faber Construction Co., Inc., 269 AD2d 820 (2000), 703 NYS2d 645 (holding that because the warranty provided in the sale contract of a new home did not meet the statutory standard, defendant builder was not permitted to rely on the shortened warranty period); Fumarelli v. Marsam Development, Inc., 238 AD2d 470 (1997), 657 NYS2d 61, leave to appeal granted 91 NY2d 809, 670 NYS2d 403, 693 NE2d 750, aff'd 92 NY2d 298, 680 NYS2d 440, 703 NE2d 251 (holding that a purchase agreement's limited warranty must be in accordance with the provisions of the General Business Law § 777-b). In the instant case, the agreement contained no provision disclosing what the defendant builder would do when a defect covered by the warranty arose as well as the time within which builder would act, as mandated by statute and case law. NY Gen. Business Law § 777-b (McKinney's 1996); Latiuk v. Faber Construction Co., Inc., 269 AD2d 820 (2000), 703 NYS2d 645.
Thus, the court finds that because defendant's "as is" provision did not comply with statutory standards for limiting the Housing Merchant Implied Warranty, it is ineffective.
The plaintiff provided two estimates for the damage to the porch, both exceeding $5,000.00, but is limited to small claims damages of $5,000.00.
Judgment for the plaintiff for $5,000.00 with interest from June 7, 2006.
So ordered.