Canto v Ameri Spec Home Inspection Serv.

[*1] Canto v Ameri Spec Home Inspection Serv. 2005 NYSlipOp 51037(U) Decided on June 28, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: June 28, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, P.J., ANGIOLILLO and COVELLO, JJ.
2004-1388 RO C

Eric Canto, Respondent,

against

Ameri Spec Home Inspection Service, Appellant.

Appeal by defendant from a small claims judgment of the Justice Court, Town of Clarkstown, Rockland County (V. Alfieri, Jr., J.), entered April 16, 2004, which awarded plaintiff the sum of $1,312.56.

Judgment unanimously modified by reducing the award to plaintiff to the principal sum of $495; as so modified, affirmed without costs.

Defendant performed a pre-purchase home inspection for plaintiff on July 8, 2003, pursuant to a contract which included a wood destroying insect infestation inspection, a radon gas test and a general home inspection for a total cost of $495. Plaintiff moved into the house on September 18, 2003 and discovered termites. Defendant's inspection failed to disclose the termite infestation.

The contract entered into between the parties contained a clause limiting defendant's liability in the event of a negligent inspection to the fee paid for the services performed (i.e., $495) (see Sommer v Federal Signal Corp., 79 NY2d 540 [1992]). Although the "Pet and Dry Rot Inspection Addendum" attached to the contract contained an exculpatory clause limiting defendant's liability to the fee paid for that service ($75), any ambiguity between the various clauses in the contract must be construed against the drafter (see Matter of Cowen & Co. v Anderson, 76 NY2d 318 [1990]; Reckess v Goldman, 12 AD3d 658 [2004]). While a party may not limit its liability for damages caused by its own gross negligence, defendant's failure to properly conduct the insect infestation inspection did not constitute gross negligence under the circumstances (see Peluso v Tauscher Cronacher Professional Engrs., 270 AD2d 325 [2000]). Accordingly, defendant is only liable for the sum of $495, rather than the consequential damages awarded.
Decision Date: June 28, 2005