Fry v Mr. Bobcat, Inc.

[*1] Fry v Mr. Bobcat, Inc. 2012 NY Slip Op 50140(U) Decided on January 24, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 24, 2012
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., LaCAVA and IANNACCI, JJ
2009-625 S C. x

Christina Fry, Appellant-Respondent,

against

Mr. Bobcat, Inc., Respondent-Appellant. x

Appeals (1) by plaintiff from a decision of the District Court of Suffolk County, Fourth District (Howard Bergson, J.), entered October 27, 2008, and (2) by defendant from a proposed judgment dated March 9, 2009, deemed an appeal and cross appeal from a judgment of the same court entered October 6, 2009 (see CPLR 5520 [c]). The judgment, insofar as appealed from by plaintiff, after a nonjury trial, dismissed the complaint and, insofar as cross-appealed from by defendant, denied defendant's application for attorney's fees and costs.

ORDERED that the judgment, insofar as appealed from by plaintiff, is reversed, without costs, the complaint is reinstated and the matter is remitted to the District Court for a new trial; and it is further,

ORDERED that the cross appeal is dismissed as abandoned.

Plaintiff entered into two separate contracts with defendant, for which she paid
him in full, to perform landscaping and masonry work on the exterior grounds of her home. In this action, plaintiff seeks to recover the entire amount she paid on the first contract, and a portion of the amount she paid on the second contract, alleging that defendant's performance under the two contracts was inadequate. Plaintiff's first four causes of action pertain to defendant's alleged failure to perform in a workmanlike manner under the two contracts, and his alleged breach of warranty. Plaintiff's fifth cause of action seeks to recover on a theory of negligence, based on defendant's alleged accidental destruction of a concrete walk that lay next to plaintiff's house. At the close of plaintiff's case at the nonjury trial, defendant's motion to dismiss was granted. A judgment was subsequently entered.

Plaintiff was the only witness at trial and introduced both contracts into evidence. Under the first contract, defendant agreed to install a stone staircase, to build dry stack stone walls, to grade plaintiff's driveway, and to install topsoil in planters, for a total sum of $12,500. By her testimony and by photographic evidence, plaintiff established at least that defendant, by his improper installation of a portion of the staircase and the dry stack stone walls, had breached that contract. Under the second contract, defendant undertook to install large amounts of gravel fill and topsoil on plaintiff's property, for which plaintiff paid $18,000. Plaintiff testified that since the fill had been installed, approximately six feet of fill had washed away, and sought to recover $15,000. [*2]

With respect to her fifth cause of action based on negligence, plaintiff testified that defendant damaged the concrete walkway near her house and that defendant's restoration of the walkway was inadequate for her purposes. She introduced into evidence photographs which depicted the condition of the walkway both before it had been damaged and after defendant had purportedly restored it. Finally, plaintiff testified that she had spent $3,000 on repairs.

As plaintiff's complaints about defendant's work, including the installation of two stair treads in an upside down position, crumbling walls, and eroding fill, involved matters where the defective nature of the work could be apparent to a non-expert observer, plaintiff's testimony and her photographs provided sufficient evidence of the inadequacy of defendant's work, despite her lack of an expert witness (see Schiffman v Deluxe Caterers of Shelter Rock, 100 AD2d 846 [1984]; see also Infante v Jerome Car Wash, 52 AD3d 319 [2008]). Upon our review of the record, we conclude that plaintiff made out a prima facie case on all her causes of action, and that the District Court erred in dismissing the complaint. We therefore remit the matter to the District Court for a new trial.

Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: January 24, 2012