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Kenneth J. Ormandy, Appellant v. Swim Clean Pool Service

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


December 7, 2012

KENNETH J. ORMANDY, APPELLANT, --
v.
SWIM CLEAN POOL SERVICE, INC., RESPONDENT.

Appeal from a judgment of the District Court of Suffolk County, First District (Philip Goglas, J.), entered June 14, 2011.

Ormandy v Swim Clean Pool Serv., Inc.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2012

PRESENT: LaSALLE, J.P., MOLIA and IANNACCI, JJ

The judgment, after a non-jury trial, dismissed the action.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the District Court for a new trial.

Plaintiff commenced this small claims action to recover the principal sum of $5,000 for an alleged breach by defendant of its guarantee of plaintiff's in-ground pool liner that defendant had installed. At a non-jury trial, plaintiff testified that, in June 2004, he had paid defendant $2,750 for the purchase and installation of a Durawall swimming pool liner. It was uncontested that the pool liner had been sold subject to a "100% 5 year labor guarantee" as well as a "full" 25-year manufacturer's warranty. Plaintiff asserted that, due to faulty installation, the liner repeatedly came out of the coping, and that, in each of the five years following its installation, defendant had serviced the liner without charge pursuant to the five-year warranty. Plaintiff introduced into evidence photographs of his pool and defendant's invoice of June 6, 2005, which invoice indicated that defendant had serviced plaintiff's pool liner that had come out of the coping and that defendant had "summerized" the pool. The invoice listed a charge for the "summerization" but no charge for the coping repair. Plaintiff explained that he had no documentation of defendant's subsequent repairs because, since they had been covered by defendant's guarantee, defendant had not invoiced him. Plaintiff testified that, by the summer of 2010, the pool had become unusable. Plaintiff introduced into evidence defendant's estimate of $4,250 to correct the problem, as well as a second itemized proposal from a different swimming pool company. The court did not permit plaintiff to introduce into evidence a written estimate from a third pool company.

In opposition to plaintiff's claim, defendant's owner, William Shire, introduced into evidence defendant's business records, which, he claimed, showed that defendant had not serviced plaintiff's pool at any time after October 2005. Shire denied that he had ever been informed of a problem concerning plaintiff's pool liner. However, defendant's own exhibit set forth that the "lining [was] coming out of coping" on June 6, "5005" [sic]. Although Shire testified that he had no direct knowledge of how plaintiff's pool had been maintained during the period from 2005 to 2010, he stated that plaintiff's photographs demonstrated that the damage to the pool liner had been caused by improper maintenance. Shire did not elaborate as to what kind of "maintenance" should have been done to prevent the problem. He asserted that the 25-year warranty on the pool liner covered the liner's seams, which were not claimed to have failed.

Following the trial, the District Court dismissed the action, finding that plaintiff had failed to present expert testimony to establish that his problems with the pool liner arose from defendant's improper installation of the liner, as opposed to plaintiff's inadequate maintenance thereof, or that the problems complained of were within the scope of the 25-year manufacturer's warranty. The court commented that defendant's representative had "credibly testified that the liner failure was the result of the pool being drained which caused the liner to shrink thereby rendering [it] incapable of being supported by the pool coping and/or improper maintenance of the pool and not defective workmanship," and that defendant's representative had testified that he had never had any complaints from plaintiff regarding the installation of the liner prior to the commencement of this case.

We find that there was no basis for the court's conclusion that "plaintiff was required to present expert testimony to establish that the liner failure was the result of defective workmanship and not the result of improper maintenance by the plaintiff." We note that defendant's five-year labor guarantee was not conditioned upon any required maintenance by plaintiff. The record also does not support the court's description of the testimony of defendant's witness, that plaintiff's draining of the pool had "caused the liner to shrink thereby rendering [it] incapable of being supported by the pool coping . . ." Moreover, while the court credited the testimony of defendant's representative "that he never had any complaints from the plaintiff regarding the installation of the liner until receiving the instant small claims complaint," that statement was contradicted by defendant's own invoice from 2005, one year after the installation of the pool liner, which stated that the liner was coming out of the coping. In view of the foregoing, we conclude that the judgment failed to render substantial justice between the parties according to the rules and principles of substantive law (UDCA 1804, 1807).

We do not consider the contentions which plaintiff has raised for the first time on appeal (see North Fork Bank v ABC Merchant Servs., Inc., 49 AD3d 701, 702 [2008]).

Accordingly, we reverse the judgment and remit the matter to the District Court for a new trial to determine whether defendant breached its labor guarantee during the guarantee's five-year term.

LaSalle, J.P., Molia and Iannacci, JJ., concur. Decision Date: December 07, 2012

20121207

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