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Carter v. Gilbert

Other Lower Courts

January 7, 2008

Todd Carter, Plaintiff,
v.
Raymond Gilbert, Defendant.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

Todd Carter Plaintiff pro se

Raymond Gilbert Defendant pro se

OPINION

Francesca E. Connolly, J.

This small claims proceeding was commenced by plaintiff, Todd Carter, against defendant, Raymond Gilbert, in Town of Cortlandt Justice Court by service of a small claims summons dated September 6, 2007, seeking recovery for breach of contract in the sum of $3,000.00 for the replacement of a boat motor with a cracked block. Due to a conflict, the Cortlandt Town Justices recused themselves, and the case was transferred to this Court by Order of the Hon. Francis Nicolai, A.J.S.C., dated September 18, 2007. The trial was initially scheduled for November 8, 2007, but was adjourned by the Court to November 26, 2007.

On November 26, 2007, both parties appeared pro se and a non-jury trial was held. After considering the sworn testimony of the parties and witnesses and the documents admitted into evidence, the Court makes the following findings of fact and conclusions of law:

FACTUAL BACKGROUND:

On July 2, 2007, the defendant, Raymond Gilbert, placed an ad for the sale of a 1985 - 21 foot Bayliner Trophy style boat with a cuddy cabin and inboard-outboard motor, and trailer. The advertised price was $2,500.00. The defendant had purchased the boat used from his father six years before for $6,000.00. The defendant's father had also purchased the boat used four years before that. The engine had been replaced by the defendant's father. The defendant had only used the boat six to ten times each year for a couple of hours each time. However, the last time that the defendant used the boat was a year or two before he sold it. The defendant testified that the boat was properly stored and winterized.

Gary Dine testified that he assisted the defendant in getting the boat running after it was taken out of storage. He knew that the boat had been sitting in storage for a couple of years. Dine had helped the defendant winterize the boat two to three years before. Dine never rode in the boat and never saw it run in the water. When the boat was being prepared for sale, he ran the motor with a garden hose for about 15 minutes and did not see any leak, but admitted that the motor would run hotter in the water. He never looked at the motor block.

On July 6, 2007, the plaintiff, Todd Carter, and his friend, Chris Russell, responded to the ad and viewed the boat at the defendant's premises. The plaintiff described this as a fishing boat and indicated that he had used a similar boat in the past. The boat had been in storage, so the defendant had some difficulty getting it to run. He asked the defendant if everything on the boat worked, to which the defendant responded that it did. The defendant had difficulty with the throttle, which caused the boat to stall. Plaintiff knew that the boat needed some work, including replacing the batteries and gasket, a tune-up, and some minor cosmetic repairs. In addition, the trailer needed tires and some other minor work. Other than these repairs, which both parties characterized as "minor," the boat seemed to be in good condition. The defendant told plaintiff that the motor was rebuilt and that it was working great and had nothing wrong with it.

Dr. Melanie Gilbert, the defendant's wife, also testified that she heard the boat running fine at their house at the time of sale. She and her husband decided on the price of the boat in light of its condition, which she believed to be in good running condition. She had not ridden in the boat in 2006 or 2007.

Chris Russell, an experienced mechanic, machinist, engine rebuilder and boat owner, agreed with plaintiff's assessment of the boat's condition. When Russell first saw the boat, he could not see under the motor. Although the motor would not idle, there was nothing ...


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