Dori v Rabco Eng'g, P.C.

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Dori v Rabco Eng'g, P.C. 2011 NY Slip Op 32292(U) August 19, 2011 Supreme Court, Nassau County Docket Number: 7719/08 Judge: Karen V. Murphy Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] Short Form Order SUPREME COURT - STATE OF NEW YORK TRIAL TERM. PART 15 NASSAU COUNTY PRESENT: Murphy Justice of the Supreme Court Honorable Karen J' EZRA DORI Plaintiff(s), -against- Index No. 7719/08 Motion Submitted: 6/14/11 Motion Sequence: 006 RABCO ENGINEERING, P. c. and ROBERT BENNETT, Defendant(s). The following papers read on this motion: Notice of Motion/Order to Show Cause........................ Answering Papers.......................................................... Reply............................................................................. . BfIe s: amtI s etItIoner s........................................ . f: Pl ff IP Defendant' s/Respondent' s.................................. Defendants move this Cour for an Order granting summar judgment against plaintiffs and dismissing the complaint. Plaintiffs oppose the requested relief. This action sounds in negligence and professional malpractice as a result of defendants ' alleged negligent inspection oftheir residence on May 6 2005. Plaintiffs hired the defendants to inspect that propert, in contemplation of purchasing it , and they eventually purchased the propert relying on the defendants ' report and advice. Plaintiffs specifically claim , among other things , that the defendants failed to adequately advise them of the extent of the severe mold condition beneath their siding and roof, and the improper application of Dryit siding to the house. Plaintiffs seek to recover the monies expended " in the past and [* 2] the future " to remedy the conditions. I By previous Decision and Order of this Court 2 upon defendants plaintiffs from introducing evidence as to their damages claim on the ground that plaintiffs ' motion to preclude engaged in spoliation of critical evidence , pennitted to attempt to establish defendantsthis Court determined that plaintiffs wil not be liabilty for conducting home inspection through the testimony of' an expert basing his an allegedly negligent inspection of the premises conducted after the remedial work or her opinion upon an commenced and/or was completed. In that same Order, the Court found that evidence as to the condition the time of inspection (May 6 , 2005) was , and remains , readily available to both the Court detenined that plaintiffs may utilize the services of an exper to paries. testity about good and accepted standards related to conducting home inspections at that time what should, or should not , and , have been done durg the proof to that issue, the Court further detenninedthe May 6 , 2005 inpecton. ConfIning that defendants wil be able to mount a meaningful defense thereto. ofthe house Thus, In the instant motion , defendants contend that they have established their entitlement to summary judgment as a matter of law because defendants did not breach any duty to plaintiffs , nor did they depart from any accepted industry/professional standard of care. Further, defendants claim that , as a result of this Court' s prior decision , plaintiffs wil not be that any claimed breach was the proximate cause damages sustained by them. ofthe alleged able to establish prima facie Plaintiffs assert that defendants ' inspection was negligent because the defective conditions in and on the premises were readily observable in the photographs taken by defendants as part ofthat inspection. Also , plaintiffs claim that defendants ' itself evidences the departures from good and accepted industry practices. inspection report Prior to commencing this action , plaintiffs contracted with a company to repair the alleged damage that they discovered after they purchased the house on the December 5 , 2005 closing date. Apparently, the contractor repaired the house by removing any a ?d all rotted wood replacing the roof, and replacing the Dryit siding with vi ?yl siding. !he repaIrs to the house were made during the period of time ranging from approxImately Apnl to ust 200 , some two years prior to the commencement of this suit. Furher according t ? plamtlff no pIctures of the alleged damage were taken by them , or by their contractor , a repaIrs were bemg made to the premises. Plaintiff has produced handwritten proposals and receIpts from the contractor outlning the work that was done to the premises , which total at least $56 000. Dated Februar 23 , 2011. [* 3] This Court recognizes that summar judgment is a drastic remedy and only be granted in the limited circumstances where there are no triable issues as such should offact. Pomeroy, (Andre 35N. 2d361 , 320 N. 2d 853 , 362N. 2d 131 (19741). Summar judgment should only be granted where the court finds as a matter oflaw that there is no genuine issue as to any material fact. (Cauthers v. Brite Ideas, LLc, 41 A. D.3d 755 , 837 N. (2d Dept. , 20071). The Court' 2d 594 favorable to the non-moving Transportation Authority, s analysis of the evidence must be viewed in the light most par, in this case the plaintiffs (Makaj v. Metropolitan 18 A. D.3d 625 , 796 N. Y. 2d 621 (2d Dept. , 20051). It is also incumbent on the part moving for summar defendants , to demonstrate the merits of their defense by the judgment , in this case the submission of admissible fonn , not to merely point to gaps in the Renovations Ltd. 66 A. D.3d 524 , 887 N. 2d 64 (1st Dept. Brothers, Inc. 294 A. 2d 264 , 741 N. 2d 873 (1st Dept. 235 A. 2d 675 652 N. S.2d 146 (3d Dept. evidence in (Alvarez v. 21't Century plaintiffs proof , 2009); , 2002); University, DeMilia v. DeMico Rothhardv. Colgate , 1997)). In support of their motion , defendants have submitted inter alia the deposition testimony of defendant Bennett and the affidavit of Bar Rodi , a professional engineer who wil testifY as an expert witness on defendants behalf at the time of Mr. Rodi states that he is a licensed New York'State home inspectortrial. In his affidavit , and a member of the American Society of Home Inspectors (" ASHI" Defendant Bennett , in his deposition testimony, recognizes the ASHI as an authority on the matter of home inspections , acknowledges that he refers to and follows the ASHI manual/guidelines in conducting home inspections , consults the outline of a past president of ASHI , and has taken ASHI courses. Thus , it is clear to this Court that there exist standards of practice to be exercised in the home inspection industr, whichinspections. , if not followed may result in liability for breach of a duty owed to clients relying on such It is noteworty that defendants ' expert , Mr. Rodi , acknowledges the existence ofa duty owed by defendants to plaintiffs. Specifically, Mr. Rodi states " to a r asona le degree of engineering and professional certainty, " that defen ants performed the mspec lOn of the premises in question "within the reasonable and applIcable standard of professIOnal care Mr. Rodi' s conclusory affidavit does not , however , set forth the standards for the type of home inspection conducted in this matter. Mr. Rodi does not refer to ny standards of practice of any professional organization , including ASHI , concerned wIth the matter of home inspections. Mr. Rodi simply refers to his "research into relevant code and statute According to his testimony, defendant Bennett is not a member of ASH!. ," [* 4] provisions " and his experience as a basis for his conclusion that defendants perfonned the inspection "within the reasonable and applicable standard of professional care. Furtennore , Mr. Rodi' s statements that no evidence Doris establishing that the conditions alleged by the Doris (has been) submitted by the in this action observable. . . " is not germane to this Court' were readily s detennination ofa summar judgment Even if plaintiffs were to be restricted at trial to proving the cost of the inspection motion. as their only damage , the amount is irrelevant in the context of the instant motion. Upon consideration of defendants ' submissions 4 there exists a genuine issue of material fact , which is whether or not defendants breached their duty to plaintiffs during the course of the home inspection and ensuing report conducted in May 2005. It is defendants burden to establish their entitlement to summar judgment as a matter of law , which they have failed to do. Since the defendants have failed to meet their burden , it is unnecessar to detennine whether the plaintiffs papers submitted in opposition are sufficient to raise a (See Levin v. Khan 73 A. D.3d 991 904 N. prima facie triable issue of fact Kjono v. Fenning, 69 A. D.3d 581 , 893 N. 2d 73 (2d Dept. 2010); 2d 157 (2d Dept. , 2010)). Nonetheless , had defendants sustained their burden , the affidavit of plaintiffs expert Alvin UbeIl , raises a triable issue of fact as to whether defendants breached their 'duty to plaintiffs. Mr. Ubell points to various and specific portions of defendants ' inspection report as being sub-standard , and he cites to particular standards of practice adopted by the ASHI which he asserts that defendants violated. Thus , it is the province ofthe trier of fact to assess and detennine this "battle of the experts. Accordingly, plaintiffs ' summar judgment motion is denied. The foregoing constitutes the Order of this Court. Dated: August 19 2011 Mineola , N. ERED " D AUG 23 2011 l' The Cour does not consider the AffirmatIOn. of piamtiff Ezr NASSAU COUNTY ?n as It IS n admissible form. Although Mr. Dori is a physician lIcensed .to practlce I the State .V CLERK' S OFFICE York , he is a par to this action and , as such , may not submIt an affrmatIOn pursuat to CPLR 2106.

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