Opinion
17080/04.
Decided June 13, 2011.
Matthew Muraskin Esq, Attorney for Plaintiffs, Pt Jefferson NY.
Harold Reichel, Esq, Attorney for Defendant, Melville NY.
NATURE OF THE ACTION
Plaintiff commenced this action by filing a Summons and Complaint on July 28, 2004. Plaintiff sought $35,000.00 in damages against Defendant for defective workmanship and defects in the home Plaintiff purchased from Defendant. Defendant in its Answer denied each and every allegation. This action was transferred, pursuant to NY Civ. Pract. Law Rules § 325(d), to this Court for trial without a jury. The Court conducted a two-day trial which concluded with a reserved decision.
TESTIMONY AND FACTS
The Complaint set forth the following damages:
-a one-foot diameter patch of foreign matter was "inlaid" into the blacktop driveway
-the property was graded in such a way that water remains on both sides of the house for extended periods after a rain
-the powder room ceiling duct caused condensation to run out and ruin the ceiling
-there is a crack in the cement slab that runs the width of the kitchen which in turn caused the tile thereon to crack as well as to make a hollow sound wherever the tile does not fit snugly; and
-the gas line to fireplace restricts gas flow making fireplace unusable
Plaintiff purchased a new Home from the Defendant in a condominium development. When Plaintiff first saw the Home in 1999 it was just a shell, and it appeared to be used by Defendant to store building materials. At that time, Plaintiff saw the exposed kitchen floor slab and observed a crack running 25 feet long. Closing of title occurred in February 2000. The Plaintiff received a prospectus, or Offering Plan, which contained limited warranties for 1-year, 2-year and 10-year periods.
Plaintiff described additional problems with the Home that were not included in the Complaint. Specifically, Plaintiff said there was a hole in the roof and a hole in the attic floor; the second floor was weak and noisy; the upstairs loft bannister was wobbly and improperly installed; and the living room wall was bowed out towards the exterior. Plaintiff also expanded on the other issues, such as the cracks that developed in the kitchen floor tiles; the driveway that was worn and had oil and cement on it; the HVAC duct was not connected properly causing condensation to accumulate; and the fireplace gas piping was improper. Plaintiff said he had an engineer's report prepared in 2006 which he then delivered to the on-site office trailer.
Prior to closing of title, Plaintiff completed a final inspection of the Home with Vito, one of Defendant's employees. During the final inspection, Plaintiff raised many of the concerns listed above, such as the hole in the attic floor, the hole in the roof, the weakness in the second story floor, the bannister, and the cement on the driveway. Vito told Plaintiff he would fix some of the problems, and only added to the list the items he intended to personally fix. He told Plaintiff to file a warranty claim regarding the driveway and the other problems Plaintiff proceeded to closing of title, and accepted the deed, with the Closing List that was prepared by Vito.
Plaintiff introduced a letter wherein Defendant acknowledged to its attorney several of the Plaintiff's complaints. That letter was dated March 2005 and did not state when the complaints were received. The letter addressed the drywall in the living room above the fireplace, the fireplace gas pipe, the integrity of the outside living room wall, the opening in the roof where the fascia met the roof base, the loose second floor bannister, the HVAC duct problem over the powder room, and the broken kitchen floor tiles.
Plaintiff explained that he filed several warranty claims, but did not say exactly when they were filed. Plaintiff made the claims on site, or sent certified letters to the Defendant's main offices, or would visit the on-site office trailer. Plaintiff filed a claim for the driveway in May 2000, about three months after closing of title. Plaintiff received no response. In 2008, Plaintiff removed the old driveway and installed a cement and stone driveway. Plaintiff acknowledged that he ordered kitchen floor tiles outside the construction contract, and had Howie install it whom he believed was one of Defendant's employees. Plaintiff paid Howie directly. According to Plaintiff, Howie told him that he patched the crack before setting the floor tiles. However, Plaintiff later noticed floor grout loosening, and many of the floor tiles had a hollow sound as though they were not set against the cement slab.
Plaintiff complained about improper drainage around the premises. The Homes are about five feet apart, and the lawn between the Homes accumulates water after a rain. In 2003, the ceiling in the powder room collapsed from accumulated water from the HVAC system. Plaintiff paid $2,000.00 to have it partially repaired, and the remaining repairs would cost an additional $2,000.00. What the "remaining repairs" were was not explained.
Plaintiff submitted a February 2001 letter he sent to the Defendant's office by certified mail. In it, Plaintiff complained about a relief valve issue on the water heater, the improper gas pipe size to the fireplace, an issue with the master bathroom, and floor boards in the master bedroom making noise. After not receiving a response from Defendant, Plaintiff called in a local repair company which replaced the gas valve for $800.00. The letter did not include any of the other issues complained of above. Attached to the letter was Defendant's Inspection form apparently indicating that the items in the letter would be addressed.
Plaintiff's expert testified about inspecting the Home in 2006. He described that in the middle of the driveway there were signs of cement, and the driveway was worm from heavy vehicles. Although he did not test the integrity, or structure, of the driveway, he opined that it was improperly constructed because cracks should not have appeared on a driveway of this age. He then explained that there was ponding of water in four areas between the Homes after a rain. He did not test the soil under the grass for consistency or permeability, but opined that a run-off needed to be installed or the sub-soil changed. The expert then inspected the bathroom where he saw the ceiling was replaced. Although he did not look into the ceiling, it was explained to him by the Plaintiff that the ceiling was replaced because of moisture from the HVAC system. He opined that additional duct insulation could help avoid condensation on the HVAC ducts. He concurred that kitchen tile grout was missing, and parts of the floor sounded hollow. He explained that the hollow sound was likely caused by the tiles not being properly bonded to the slab. He could not tell if the slab had a crack. Next, he inspected the fireplace. It was not on when he visited, but was told it had been repaired. He then explained that he saw a photograph of how a wall beam was etched out to fit the gas pipes. He opined that etching the beam, instead of core drilling it, compromised the integrity of the beam. He did notice the siding on the outside of the wall looked bowed, and opined that the etching of the beams caused this to occur. He next described the upstairs bannister and how it was not fastened to the far wall. He estimated it would cost $3,500.00 to make the necessary repair. The expert confirmed the hole in the attic when he explained seeing snow in the attic when he went in. He explained that the roof base and fascia did not meet. Plaintiff used the expert's testimony to establish the value of the damages. In response to the question, "how much would a repair cost?" the expert gave approximate values such as "about" $2,000.00.
The Defendant corporation testified through its Chief Executive Officer. He explained how the purchase contract incorporated the offering plan which then includes the appropriate warranties. Warranties generally fell into 1-year, 2-year and 10-year periods. He proceeded to address each of Plaintiff's concerns. Regarding the kitchen floor, the Plaintiff purchased his own tiles and hired Howie to complete the installation. Howie was not Defendant's employee, but had his own tile company and did tile work for Defendant. He stated that the driveway was excluded, pursuant to the contract, from any warranties. Although he received the letter from the Plaintiff's attorney about one year after closing, the CEO responded by directing the attorney to tell Plaintiff to follow the warranty claim procedures. After describing the warranty claim process, he claimed that he had no documentation that Defendant received a claim about pooling water on the lawn. He stressed that grading met local building code requirements or a certificate of occupancy would not have been issued. The first complaint received from Plaintiff regarding the HVAC system was in February 2004. Because the HVAC system is under a two-year warranty, the claim was received too late. He remembered checking out the fireplace issues, and that the valve had been repaired. He acknowledged receiving a claim for the upstairs bannister which could have been repaired with an additional bracket.
Defendant called Howie to testify. He was self employed and owned a bath and tile company for more than 12 years. He acknowledged that he installed floors for Defendant, but denied that he was an employee. He met the Plaintiff and installed his kitchen. Two weeks later he received a complaint that Plaintiff observed a pattern in the tile they had not seen during installation. He denied seeing any crack in the kitchen cement slab, and denied that Plaintiff ever told him about a crack. He further denied that he repaired a crack in the slab. He did not receive Plaintiff's complaints about cracks in the floor tiles until years later.
Defendant next called its Project Manager who qualified as an expert. He acknowledged that the driveway had cement embedded in it, but that the driveway was not covered under any warranty. The side yard water issues may be a result of the lawn irrigation system. The sprinkler system is contracted by the Homeowner's Association and is not Defendant's responsibility. He denied seeing any standing water when he visited. The HVAC issues were not reported until later in 2004, after the 2-year warranty period expired. He performed an inspection of the system, and saw a 1/2 inch gap in the duct work which he offered to repair. However, the Plaintiff then did not give him access to the Home to repair the gap. Also in 2004 he was told about the claim for a crack in the kitchen floor tile. He did observe a hairline crack. In addition to the fact that Plaintiff hired Howie to install the floor, Plaintiff's complaint was received after the 1-year warranty period expired. The living room wall, he described, had shadow lines over the fireplace which he repaired by skim coating and repainting the entire wall. He did not observe any outside bowing of the wall. The Project Manager was present when the vendor inspected the fireplace gas line problem. A new valve was installed after which the fireplace operated properly. The hole in the attic was repaired by adding plywood around the piping through the floors, and the space between the fascia and roof base was sealed. The bannister complaint was also received in 2004. As with the HVAC system, he stated that Plaintiff never granted him access to the Home to repair the bannister post.
THE WARRANTIES AND PURCHASE AGREEMENT
The purchase agreement, in relevant part, contained the following:
¶ 2 BIn the event the dwelling or its environs are not completed, but are substantially completed and habitable, on the date set by the Seller for closing of title, same shall not constitute an objection to closing title, provided Seller shall, by letter agreement to survive title closing, agree to complete any open items within sixty (60) days after closing.
¶ 12 Anything to the contrary herein contained notwithstanding, it is specifically understood and agreed by the parties hereto that the acceptance of the delivery of the deed at the time of closing of title hereunder shall constitute full compliance by the Seller with the terms of this Agreement and none of the terms hereof, except as otherwise herein expressly provided, shall survive the delivery and acceptance of the deed.
¶ 12 All representations contained in the Offering Plan shall survive delivery of the deed.
¶ 20 Seller herein makes no housing merchant implied warranty or any other warranties, express or implied, in connection with this purchase agreement or home and/or garage unit covered hereby and all such warranties are excluded, except as privided in the limited warranty annexed hereto as exhibit "A". The terms of the limited warranty are hereby incorporated into this purchase agreement and there are no warranties which extend beyond the face thereof.
The Limited Warranties, in relevant part, contained the following:
INTENT The purpose of this limited warranty is to identify the Seller's responsibilities for construction defects of a latent or hidden nature that could not have been found or disclosed on final inspection of the home.
¶ 3 Before the Purchaser moves into the home or accepts the deed, the Seller will schedule an appointment for final inspection of the home with the Purchaser. The purpose of this final inspection is to discover any defects of a visible, obvious or patent nature, or any other unfinished work.
¶ 3 All defects found on final inspection of the home will be itemized on a Final Inspection Sheet, which will be signed by the Purchaser and the Seller before occupancy of the home or delivery of the deed.
¶ 4 FIRST YEAR BASIC COVERAGE: for one year from the effective date of this warranty, the home will be free from latent defects that constitute:
a) defective workmanship by the Seller, or an agent, employee or subcontractor of the Seller;
Seller under this coverage is not responsible for any defects in any work or materials ordered directly by Purchaser from Seller's subcontractors or suppliers or other outside suppliers or subcontractors or for incidental or consequential damages resulting from such work or materials.
¶ 4 TWO YEAR MAJOR SYSTEM COVERAGE: for two years from the effective date of this warranty, the plumbing, electrical, heating, cooling and ventilation systems of the home which have been installed by the Seller are warranted to be free from latent defects resulting from defective installation by the Seller.
¶ 4 TEN YEAR MAJOR STRUCTURAL DEFECT COVERAGE: for ten years from the effective date of this warranty, the home will be free from latent major structural defects that result from:
a) defective workmanship by the Seller, or an agent, employee or subcontractor of the Seller;
b) defective materials by the Seller, or an agent, employee or subcontractor of the Seller.
A major structural defect is a defect resulting in actual physical damage to the following load-bearing portions which affects their load-bearing functions to the extent that the home becomes unsafe, unsanitary or otherwise unlivable; foundation systems and footings, beams, girders, lintels, columns, walls and partitions, floor systems, and roof framing systems.
Damage to the following non-load bearing portions of the home are not covered by this six-year coverage: roofing and sheathing; drywall and plaster; exterior siding; brick, stone and stucco veneer; floor covering material; wall tile and other wall coverings; non-load bearing walls and partitions; concrete floors in attached garages and basements that are built separately from foundation walls or other structural elements of the home; electrical, plumbing, heating, cooling and ventilation systems; appliances, fixtures and items of equipment; paint; doors and windows; trim; cabinets; hardware; and insulation.
Seller under this coverage is not responsible for any defects in any work or materials ordered directly by Purchaser from Seller's subcontractors or suppliers or other outside suppliers or subcontractors or for incidental or consequential damages resulting from such work or materials.
¶ 5 Exclusions from all coverage. The following are not covered by this warranty:
a) patent defects including defects shown on the Final Inspections Sheet and defects which an examination of the home prior to the effective date of this warranty ought to have revealed;
b) defects in detached garages and carports; swimming pools and other recreational facilities, if any; driveways; walkways; patios; boundary walls; retaining walls; bulkheads; fencing; landscaping (including sodding, seeding, shrubs, trees and plantings); and any other improvements not a part of the home itself.
c) omitted
d) defects in any work or materials ordered directly by Purchaser from Seller's subcontractors or suppliers or other outside suppliers or subcontractors and for incidental or consequential damages resulting from such work or materials.
¶ 7 Written notice of any warranty claim must be made on the attached "Notice of Warranty Claim Form: and must be received by the Seller no later than the tenth (10th) day after expiration of the applicable warranty period. If this form shall not properly be completed and received by the Seller by that deadline, the Seller will have no duty to respond to any complaint or demand contained in such form, and any or all claims may be rejected.
NOTICE OF WARRANTY CLAIM FORM:
Dear Purchaser:
To ask the Seller to correct a defect in your home that you think is covered by the Seller's Limited Warranty, you must complete this form and deliver it to the Seller. This is necessary to protect your rights to warranty performance under the Limited Warranty.
The information you will need to fill out the form will be on page 1 of the Limited Warranty. However, if you do not know the answers to any questions, write "Don't know." Please do not leave any item blank.
Your Name:
Mailing Address:
Phone:
Home No:
Effective Date of Warranty:
Describe the defect(s) which you think are covered by the Limited Warranty. Be sure to include when each defect first occurred or when you first noticed it. Use additional sheets, as necessary, to fully describe the problem:
Signature:Date:
Signature:Date:
This completed and signed form must be sent to Seller at its address listed on the first page of the warranty by certified or express mail, return receipt requested.
END OF CLAIM FORM
ANALYSIS AND DECISION
In a matter such as this, it is the province and indeed the obligation of the trial court to assess and determine matters of credibility. Morgan v McCaffrey , 14 AD3d 670 , 789 N.Y.S.2d 274 (2d Dep't 2005); Matter of Liccione v Michael A., 65 NY2d 826, 493 N.Y.S.2d 121 (1985). Here, the burden is upon the plaintiff to plead and prove its direct case by a fair preponderance of the credible, relevant and material evidence. Prince-Richardson on Evidence, § 3-210; Torem v Central Avenue Rest, 133 AD2d 25, 518 N.Y.S.2d 620 (1st Dep't 1987). Credible evidence has been defined as evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered and is evidentiary in nature and not merely a conclusion of law, nor mere conjecture. Dille v Kelly, 31 Misc 3d 1232(A) (Supreme Court, NY County, 2011).
Based upon the court's observations of Howie, it did not find his testimony credible. In light of all the testimony about the kitchen floor, it is incredible that Howie would deny that a crack even existed. Perhaps it was because of his reliance upon Defendant for tile installation work. Although not as blatant, the Court listened with caution to the Project Manager's testimony being that he likewise could have been influenced by his continued employment with the Defendant. Fortunately, the Court's analysis is based primarily upon the Plaintiff's evidence, and documentation, such that the credibility issue is of little import.
The Defendant's argument that it could ignore warranty claims from Plaintiff if they were not on the designated form is without merit. Clearly, written notice serves to protect both the Purchaser and Seller under these circumstances. But, the designated form is nothing more than a few spaces to insert the Purchaser's name and address, and to describe the complaint. Defendant is placing form over substance when it chooses to ignore a complaint that is not on the designated form, but which includes the Purchaser's name and address, and describes the complaint. Accordingly, to the extent that Plaintiff sent a warranty complaint to the Defendant which contained the Plaintiff's name, address, and described the complaint, notice of the warranty claim is deemed to have been given to the Defendant.
As for the Plaintiff's case, the purchase agreement clearly stated that acceptance of the deed constituted Seller's full compliance with the terms of the agreement, except for such items that may survive closing pursuant to a written agreement, and the limited warranty. The surviving document, in this case, is the Final Inspection Report and Closing List. That list did not include any of the items complained about by Plaintiff in this action. Even if Vito had declined to add items to the list, such as the driveway or cracked kitchen slab, it was incumbent upon the Plaintiff to have his attorney, at the closing, negotiate adding those items to the list. Next, because the purpose of the limited warranty was to identify the Seller's responsibilities for construction defects of a latent or hidden nature, the Court must determine if any of the alleged defects were latent. Lastly, if the items were latent, the Court must examine the applicable warranty periods for the alleged defects.
After reviewing the Closing List, then considering what should have been open and discoverable, and then reviewing the applicable limited warranty periods, the Court arrives at the following:
Driveway: The materials "inlaid" in the asphalt were observed in 1999, and were discoverable before closing. This item was not included in the Closing List. Plaintiff accepted the deed with knowledge of this condition. Further, pursuant to the limited warranty exclusions, ¶ 5(b), driveways are excluded from the limited warranty.
Fireplace: According to the Plaintiff and his expert, the fireplace gas pipe was repaired and was no longer an issue.
Kitchen: The crack in the slab was observed in 1999, and discoverable before closing. Plaintiff accepted the deed with knowledge that a crack existed in the slab. Plaintiff could not establish whether the cracked tiles were a result of that crack in the slab, or because of Howie's improper installation. Howie was not Defendant's employee, but was a private hire of, and paid by, the Plaintiff. The limited warranty states (several times) that Seller under this coverage is not responsible for any defects in any work or materials ordered directly by Purchaser from Seller's subcontractors or suppliers or other outside suppliers or subcontractors or for incidental or consequential damages resulting from such work or materials.
HVAC: What was described as a space in the duct work should have been discoverable during the Final Inspection. It was not included in the Closing List. Assuming it was not discoverable, Plaintiff's warranty claim was untimely. The HVAC system was covered under the 2-year limited warranty. Plaintiff accepted the deed on February 1, 2000, and testified that the defect was first reported in 2003 when the ceiling collapsed. Therefore, the first time the incident could have been reported was after the expiration of the 2-year period.
Bannister: The loose bannister should have been discoverable during the Final Inspection. It was not included in the Closing List The Plaintiff accepted the deed with this pre-existing condition. Further, the bannister would have been covered under the one-year limited warranty period. The bannister complaint was not included in the February 1, 2001, letter to the Defendant, indicating that it was not reported before the one-year period expired.
Grading: Although Plaintiff complained about water accumulating on the grass after a rain, the Court received no testimony regarding any damages caused by the water. In any event, defects in landscaping are excluded from the limited warranty.
Attic holes: As with the gas line, this issue was repaired by sealing the fascia and space around the duct through the attic floor.
Drywall: As with the gas line, this issue was repaired by skim coating the wall, and fully repainting it. The Court notes that the Defendant repaired the drywall even though it was excluded from the limited warranty.
The alleged defect that may be the most alarming pertains to the outside wall which Plaintiff claimed was bowing. The Defendant denied any bowing, and the poor quality of the pictures submitted as evidence were unrevealing either way. The Court recognizes that no proof, except Plaintiff's conjecture, was submitted that a structural defect was causing the wall to bow. There was no testimony about how severe the bowing may or may not have been. The Plaintiff's expert did not open the interior wall to inspect the beams, nor did he examine the exterior wall under the siding. Instead of personal knowledge, the expert relied upon Plaintiff's photograph and explanation. The only personal observation made by the expert was that he saw that the "siding" appeared to be bowing. Siding is expressly excluded from the limited warranty. However, because he did not inspect behind the siding, the expert could not state why there appeared to be a bowing in the siding. The inconclusive nature of this portion of the evidence requires the Court to resort to speculation, guesswork, and conjecture. Coupled with the contradictory evidence submitted by the Defendant, the Plaintiff has failed to satisfy his high burden of establishing his claim. Plaintiff also failed to submit sufficient proof of the value of alleged damages, even if any claim succeeded, in that his proof was merely the expert testifying about approximate costs without further explanation or detail.
Although there is insufficient evidence to establish the Plaintiff's claim regarding the bowing, it is clear that the Defendant has received timely notice of a potential defect in the wall. Structural defects are covered under the 10-year limited warranty. Defendant would be hard pressed to deny knowledge of this claim because it was not received on its designated form. Accordingly, while the Plaintiff may not have met his burden at this time, Plaintiff may have a viable claim against Defendant in the future should he suffer damages from this wall.
Accordingly, it is hereby
ADJUDGED that the Plaintiff has failed to plead and prove his direct case by a fair preponderance of the credible, relevant and material evidence; and it is hereby
ORDERED that the action is dismissed.
This constitutes the decision and order of the Court.
Submit judgment.