Westchester Assessment Reduction Specialist Inc v Smith

[*1] Westchester Assessment Reduction Specialist Inc v Smith 2012 NY Slip Op 51360(U) Decided on July 23, 2012 City Court Of Mount Vernon Seiden, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 23, 2012
City Court of Mount Vernon

Westchester Assessment Reduction Specialist Inc, Plaintiff(s)

against

Okeith Smith, Defendant(s).



0322-12

Adam Seiden, J.

Plaintiff brought this commercial claims action to recover one thousand nine

hundred twenty five dollars and sixty six cents ($1,925.66) alleging a breach of contract

or warranty by defendant. Plaintiff entered into a contract with Murville and Sabrina

Dixon to provide real estate tax assessment reduction services for their property at 90

Bateman Place, Mount Vernon, New York. While the reassessment process was going

forward, the Dixons decided to sell their home. The broker's memo noted the following:

"Property is a short sale - subject to seller's lender's approval. Sold

"as is". "Tax Grievance in process - Buyer agrees to pay Tax

Reduction Company fifty percent 50% of tax reduction as a fee for

their services."

The defendant herein entered into a contract to purchase the premises. The

contract did not refer to or mention the above noted condition. The real estate broker

stated that during the contract period defendant herein, as purchaser of the property,

was told of his responsibility to pay for the assessment services and verbally agreed to

do so. Defendant denies seeing the broker's memo and stated that he is bound only by [*2]

the contract.

At the closing, the plaintiff was not paid as a cost of sale (as is usually done in

a short sale transaction) such as transfer taxes etc. The sellers received no money as

all money in excess of costs went to the holder of the mortgage. The defendant herein

refused to pay the defendant's fee as it was not part of his contract with the sellers.

It is clear to this Court that there is no privity of contract between the parties to

this litigation (Mandarin Trading Ltd v Wildenstein, 16 NY3d 173 (2011); Sperry v

Crompton Corp, 8 NY3d 204 (2007)). Further, the contract of sale contains a merger

clause which means that the entire understanding of the parties and all terms of sale,

are within the contract (Primex Int'l Corp v Wal-Mart Stores,89 NY2d 594, 599-600

(1997); Restatement (Second) of Contracts § 216, comment c). As a result, the

brokers memo and the discussions between the broker and buyer (defendant herein)

are not part of the contract. "A completely integrated contract precludes extrinsic proof

to add to or vary its terms" and no obligations flow from those peripheral

communications (Id. (citing W. W. W. Assoc. v Giancontieri, 77 NY2d 157, 162). The

plaintiff has no basis to obtain relief based upon contract or warranty as claimed in this

proceeding.

However, this Court is statutorily charged with doing substantial justice between

the parties in the small claims part (Uniform City Court Act § 1804). The Court will not

allow the defendant herein to be unjustly enriched at plaintiff's expense. "Unjust

enrichment is a quasi-contract theory of recovery, and is an obligation imposed by

equity to prevent injustice, in the absence of an actual agreement between the parties [*3]

concerned" (IDT Corp v Morgan Stanley, 12 NY3d 132 (2009)). Plaintiff must

demonstrate that the other party was enriched, at plaintiff's expense, and that it is

against equity and good conscience to permit the defendant to retain services without

compensation to plaintiff. Privity is not required for an unjust enrichment claim

(Mandarin Trading Ltd v Wildenstein, 16 NY3d 173 (2011); Sperry v Crompton Corp, 8

NY3d 204 (2007)).

Here, the Court finds that the services were provided by plaintiff and a benefit

was gained by defendant. A review of the facts show that neither party acted in a truly

business like manner and they should share the cost of remediation of the problems

created.

Plaintiff should have insisted upon a clause in the sales contract or a separate

writing from the buyer (defendant) or should have ceased to provide services.

Defendant should not be allowed to take advantage of this plaintiff with, as is credibly

found by this Court, knowledge of his responsibility. Plaintiff should not pay the full

price for the seller's failure to put a clause in the contract.

Judgment for plaintiff in the sum of nine hundred eighty seven dollars and eighty

three cents ($987.83).

The above constitutes the decision and order of the Court.

Dated: Mount Vernon, New York

July 23, 2012

HON. ADAM SEIDEN

Associate City Judge of Mount Vernon

To:Westchester Assessment Reduction

Specialists, Inc. [*4]

2 Gramatan Avenue, Suite 210

Mount Vernon, New York 10550

Okeith Smith

90 Bateman Avenue

Mount Vernon, New York 10552