Shaw v Mr. Tile Custom Kitchens & Baths, Inc.

[*1] Shaw v Mr. Tile Custom Kitchens & Baths, Inc. 2005 NY Slip Op 50184(U) Decided on February 17, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 17, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-19 S C

Paul Shaw, Appellant,

against

Mr. Tile Custom Kitchens and Baths, Inc., Respondent.

Appeal by plaintiff from a small claims judgment of the District Court, Suffolk County (G. Murphy, J.), entered August 21, 2003, in favor of defendant dismissing the action.

Judgment affirmed without costs.

Plaintiff commenced this small claims action seeking to recover $3,000 of the money he paid defendant to install new windows at plaintiff's house, claiming that defendant failed to do so in a workmanlike manner. After trial, the court dismissed plaintiff's action, finding that plaintiff failed to sustain his burden of proving his case. Reversal is only warranted if the record on appeal demonstrates that the judgment is clearly erroneous (see Ross v Friedman, 269 AD2d 584 [2000]; Moses v Randolph, 236 AD2d 706, 707 [1997]; Makas v Every, 224 AD2d 793 [1996]). In the instant case, a review of the record indicates that substantial justice was done between the parties according to the rules and principles of substantive law (see UDCA 1807; Moses, 236 AD2d 706).

McCabe, P.J. and Covello, J., concur.

Tanenbaum, J., dissents in a separate memorandum.

Tanenbaum, J. dissents and votes for reversal and entry of judgment for plaintiff for $3,000 in the following memorandum.

Reversal is warranted because the judgment below is erroneous and substantial justice was not done between the parties (see UDCA 1807; Ross v Friedman, 269 AD2d 584 [2000]; Moses v Rudolph, 236 AD2d 706 [1997]).

The Court below noted that the parties agreed that windows would be installed by defendant, and that siding abutting the new windows would be installed by others. Defendant, under this agreement, was required to properly install the windows. This installation required compliance with manufacturer's requirements and instructions (introduced into evidence). These requirements included:

1) level and square placement of each window in each opening;

2) insulation;

3) the application of sealant to cause the installation to be weather tight; and

4) the placement of trim on the windows.
The evidence below indicates that defendant failed to comply with any of these instructions resulting in defective installation of the windows.

The evidence also establishes that plaintiff was damaged in the amount claimed. The windows were not level or square and they leaked air and water. An examination of the photographs in evidence also showed that the trim, required by the parties' agreement, was not installed. Instead coarse dimensional lumber was installed in the window surround.

Thus, unambiguous documentary and photographic evidence established that if the judgment is not reversed, plaintiff will have paid $8,200 to defendant and will receive no relief for the defendant's shoddy, improper and unfinished window installation leaving plaintiff with windows that leak. The irony of an affirmance is that defendant, an unlicensed contractor, could not comply with the CPLR 3015 predicate for commencement of an action to recover for his defective performance under the parties' agreement but will be rewarded with the contract payments.
Decision Date: February 17, 2005