Testa v Liberatore

[*1] Testa v Liberatore 2004 NY Slip Op 51677(U) Decided on December 21, 2004 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
2004-518 W C

GARY TESTA, Appellant,

against

VINCENT J. LIBERATORE, Respondent.

Appeal by plaintiff from a small claims judgment of the City Court of Yonkers, Westchester County (T. Daly, J.), entered November 28, 2003, in favor of defendant dismissing the action.

Judgment unanimously affirmed without costs.

In this small claims action based on an alleged breach of contract for the sale of a new home, we note that the unsigned copy of the contract, which the parties conceded constituted the terms agreed upon, was admitted into evidence and considered by the court. The rider to the contract of sale provides that purchaser was to receive a credit of $500 at closing for an electrical ceiling fixture. Although plaintiff claimed that the failure to receive same at closing was an oversight, defendant testified that he performed additional work in the basement in lieu thereof. In addressing said issue, the trial court simply noted that inasmuch as the contract of sale does not survive closing, plaintiff had "little recourse." To the contrary, paragraph 18 (e) of the printed portion of the contract provides that any errors or omissions in computing apportionments or other adjustments at closing shall be corrected within a reasonable time following closing. The subparagraph further stated that its provisions shall survive closing. Assuming that plaintiff is correct in alleging that there was an oversight, plaintiff had a reasonable time following closing to request reimbursement. Inasmuch as plaintiff at trial did not indicate when, or if he requested that defendant correct the omission and since there was a gap of [*2]approximately four years between the closing and the institution of this action, plaintiff, by failing to establish that he requested the correction within a reasonable time, is precluded from any recovery pursuant to the contract.

As to plaintiff's contention regarding the documentation he brought to court, the record reflected that plaintiff brought two estimates regarding the air conditioning and pictures of the fence. However, said estimates were not admitted into evidence and there is no indication that they satisfied the admissibility requirements of section 1804 of the Uniform City Court Act. Plaintiff admitted that he requested that defendant leave the fence, even though he saw it was temporary and had to be "shored up." As to any claim under the statutory implied warranty set forth in Article 36-B of the General Business Law, plaintiff, prior to bringing suit, was required to provide defendant with a written notice of a warranty claim for breach of the housing merchant implied warranty prior to commencement of the action (see General Business Law § 777-a [4] [a]; Fumarelli v Marsam Dev., 92 NY2d 298 [1998]).

In view of the foregoing, the judgment should be affirmed as substantial justice was done between the parties in accordance with the rules and principles of substantive law (UCCA 1807).
Decision Date: December 21, 2004