Etter v Bloomingdale Vil. Corp.

[*1] Etter v Bloomingdale Vil. Corp. 2005 NY Slip Op 50208(U) Decided on February 18, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: February 18, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and GOLIA, JJ.
2004-329 RI C NO.2004-329 RI C

Domenica Etter and Brian Etter, Respondents,

against

Bloomingdale Village Corp., Appellant.

Appeal by defendant from a decision, dated August 13, 2003, deemed (see CPLR 5520 [c]) an appeal from a judgment of the Civil Court, Richmond County (E. Vitaliano, J.), entered August 29, 2003, in favor of plaintiffs in the sum of $5,465.67.

Judgment reversed without costs and a new trial ordered limited to an assessment of damages to which plaintiffs are entitled with respect to the tub.

Plaintiffs purchased a new home from defendant. After the closing, plaintiffs served upon defendant a notice of warranty claim for breach of a housing merchant implied warranty. The notice set forth a number of claimed defects, including defects
relating to a tub. After trial, the court awarded plaintiffs damages in the sum of $4,925 to replace the tub and to move a hose bib which plaintiffs claim was installed in an improper location. However, since the notice of breach of warranty claim did not identify the hose bib as a defect, plaintiffs could not recover damages with respect thereto (see General Business Law § 777-a [4] [a]; Rothstein v Equity Ventures, 299 AD2d 472, 474-475 [2002]).

After assessing the credibility of the parties, the court determined that the jacuzzi tub was damaged prior to the passing of title and that the condition of the tub was hidden from plaintiffs. Inasmuch as this determination is not against the weight of the credible evidence (see Nicastro v [*2]Park, 113 AD2d 129 [1985]), the court properly held that defendant was liable to plaintiffs. However, with respect to the amount of damages awarded to plaintiffs, the record is bereft of any competent evidence to support the award. Accordingly, a new trial is required as to the amount of damages to which plaintiffs are entitled, the amount being dependent on whether the tub may be repaired,
thereby limiting plaintiffs' damages to the cost of repair, or whether the measure of plaintiffs' damages is the cost to replace the tub in the event that repairing same would
be insufficient to provide plaintiffs with the benefit of their bargain. We note that, in any event, plaintiffs may not recover damages which exceed the replacement cost.

Pesce, P.J., and Golia, J., concur.

Patterson, J., concurs in part and dissents in part in a separate memorandum: [*3]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., PATTERSON and GOLIA, JJ.
DOMENICA ETTER and BRIAN ETTER,

Respondents,

-against-
BLOOMINGDALE VILLAGE CORP.,

Appellant.

Patterson, J. concurs in part and dissents in part in the following memorandum:

The majority correctly holds that plaintiffs are unable to recover damages for the allegedly defective hose bib because it was not identified as a defect on the notice of breach of warranty claim served by plaintiffs (see General Business Law § 777-a [4] [a]; Rothstein v Equity Ventures, 299 AD2d 472, 474-475 [2002]). To the extent plaintiffs seek to recover for damage to the tub, such claim is based upon plaintiffs' assertion that the damage existed before title to property passed to plaintiffs. Inasmuch as such damage existed, if at all, when plaintiffs inspected the premises the morning of the real estate closing, the defect was patent. As a result, it is not subject to the housing merchant implied warranty (see General Business Law § 777-a [2] [b]). Accordingly, I would reverse and dismiss the action.
Decision Date: February 18, 2005