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Sharon Reis v. Cambridge Development & Construction Corporation (Carol A. Lent


March 1, 2011


Appeal from a judgment of the Justice Court of the Town of Hyde Park, Dutchess County (John M. Kennedy, J.), entered May 20, 2008.

Reis v Cambridge Dev. & Constr. Corp.

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 1, 2011


The judgment, after a non-jury trial, awarded plaintiff the principal sum of $2,250.

ORDERED that the judgment is affirmed, without costs.

In this small claims action, plaintiff, the owner of a town house unit purchased from defendant builder, seeks to recover the cost of repairing a cracked foundation, allegedly caused by defendant's deficient construction, which resulted in water seepage problems. Plaintiff testified at trial that, in June of 2002, she had entered into a contract with defendant to purchase a newly constructed town house. Following the closing of title on March 20, 2003, plaintiff notified defendant several times regarding water seepage into her basement. At various times in 2003 and 2004, defendant sent a worker to repair the problem, which defendant attributed to different causes, including a drainpipe and the height of the landscaping. In late 2007, plaintiff paid $2,250 to a contractor, who discovered and repaired a crack in the foundation, which, plaintiff alleged, was the entry point of the water seepage. She now seeks reimbursement from defendant for that amount.

Defendant's vice president acknowledged plaintiff's timely oral complaint and stated that defendant took corrective measures to remedy the water seepage problem. She testified that she had no further communication with plaintiff for more than a year. Defendant argued that plaintiff was barred from commencing this action as she did not provide defendant with timely written notice as required under the limited warranty. The warranty period for this type of coverage expired on March 20, 2004, one year from the closing of title. The Justice Court found in favor of plaintiff, awarded her the principal sum of $2,250, and defendant appeals.

Where a bench trial is held, the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see e.g. Claridge Gardens v Menotti, 160 AD2d 544 [1990]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d 125, 126 [2000]). Furthermore, the determination of the trier of fact as to issues of credibility is given substantial deference as the trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510 [1991]).

The trial court apparently believed plaintiff's version of what had transpired. The court implicitly found that the crack in the foundation had existed from the outset and that defendant had failed to take steps to correct the seepage problem. Defendant argues, however, that plaintiff is not entitled to judgment because she failed to comply with the written notice-of-claim requirement, a condition precedent to suit under the express limited warranty. Indeed, plaintiff conceded that she failed to give defendant written notice of claim within the applicable period. Defendant's witness, however, admitted that defendant had actual notice of the condition, and in fact had dispatched staff to investigate plaintiff's complaints and attempt to correct the condition numerous times. Under these circumstances, where plaintiff demonstrated a reasonable excuse for her delay in filing the notice of claim, where defendant had actual notice of the facts constituting the claim, and where defendant did not show that the delay substantially prejudiced it in maintaining its defense, defendant is estopped from asserting as a defense that it had not received timely written notice of plaintiff's claim as required by the express limited warranty (see Randazzo v Zylberberg, 4 Misc 3d 109 [App Term, 2d & 11th Jud Dists 2004]; see also General Business Law § 777-b [4] [i]).

Accordingly, we find that the judgment provided the parties with substantial justice according to the rules and principles of substantive law (UJCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125), and we affirm the judgment.

Nicolai, P.J., Molia and LaCava, JJ , concur.

Decision Date: March 01, 2011


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