Opinion
2006-84 OR C.
Decided July 31, 2007.
Appeal from a judgment of the City Court of Newburgh, Orange County (Peter M. Kulkin, J.), dated January 7, 2005. The judgment, after a nonjury trial, found in favor of defendant dismissing the action.
Judgment reversed without costs and judgment directed to be entered in favor of plaintiff in the principal sum of $2,500.
PRESENT: : RUDOLPH, P.J., LIPPMAN and MOLIA, JJ
Plaintiff instituted this small claims action to recover the cost of repair of a leaking water main pipe. The uncontroverted evidence established that pursuant to the contract of sale, defendant, as seller of the subject premises, represented and warranted, inter alia, that the water system was to be in working order at the time of closing. Defendant acknowledged that he had not repaired the leak and that although he was aware of the leak at the time of the closing, he did not disclose that fact to plaintiff. Since the existence of the leak was peculiarly within defendant's knowledge, and in view of the representation and defendant's failure to disclose prior to the closing, plaintiff is entitled to recover the cost of its repair ( see Todd v Pearl Woods, 20 AD2d 911, affd 15 NY2d 817; see also Cetnar v Kinowski, 263 AD2d 842, lv dismissed 94 NY2d 872). We note that no breach of contract action would lie for the failure to repair the water system as the contract contains a merger clause and the house was being sold "as is." However, this does not preclude an action in fraud ( Singer v Thuilot, 140 AD2d 235; Young v Keith, 112 AD2d 625). The itemized bill marked paid, introduced into evidence by plaintiff, indicated the cost of repair of the leak to be $2,500. The additional charge, to move the meter inside the house, does not appear to be part of the repair. Consequently, substantial justice (UCCA 1804, 1807) requires that judgment be entered in favor of plaintiff in the principal sum of $2,500.
Rudolph, P.J., and Molia, J., concur. Lippman, J., taking no part.