Westchester Assessment Reduction Specialist Inc v Smith
Annotate this CaseDecided on July 23, 2012
City Court of Mount Vernon
Westchester Assessment Reduction Specialist Inc, Plaintiff(s)
against
Okeith Smith, Defendant(s).
0322-12
Adam Seiden, J.
Plaintiff brought this commercial claims action to recover one thousand nine
hundred twenty five dollars and sixty six cents ($1,925.66) alleging a breach of contract
or warranty by defendant. Plaintiff entered into a contract with Murville and Sabrina
Dixon to provide real estate tax assessment reduction services for their property at 90
Bateman Place, Mount Vernon, New York. While the reassessment process was going
forward, the Dixons decided to sell their home. The broker's memo noted the following:
"Property is a short sale - subject to seller's lender's approval. Sold
"as is". "Tax Grievance in process - Buyer agrees to pay Tax
Reduction Company fifty percent 50% of tax reduction as a fee for
their services."
The defendant herein entered into a contract to purchase the premises. The
contract did not refer to or mention the above noted condition. The real estate broker
stated that during the contract period defendant herein, as purchaser of the property,
was told of his responsibility to pay for the assessment services and verbally agreed to
do so. Defendant denies seeing the broker's memo and stated that he is bound only by
[*2]
the contract.
At the closing, the plaintiff was not paid as a cost of sale (as is usually done in
a short sale transaction) such as transfer taxes etc. The sellers received no money as
all money in excess of costs went to the holder of the mortgage. The defendant herein
refused to pay the defendant's fee as it was not part of his contract with the sellers.
It is clear to this Court that there is no privity of contract between the parties to
this litigation (Mandarin Trading Ltd v Wildenstein, 16 NY3d 173 (2011); Sperry v
Crompton Corp, 8 NY3d 204 (2007)). Further, the contract of sale contains a merger
clause which means that the entire understanding of the parties and all terms of sale,
are within the contract (Primex Int'l Corp v Wal-Mart Stores,89 NY2d 594, 599-600
(1997); Restatement (Second) of Contracts § 216, comment c). As a result, the
brokers memo and the discussions between the broker and buyer (defendant herein)
are not part of the contract. "A completely integrated contract precludes extrinsic proof
to add to or vary its terms" and no obligations flow from those peripheral
communications (Id. (citing W. W. W. Assoc. v Giancontieri, 77 NY2d 157, 162). The
plaintiff has no basis to obtain relief based upon contract or warranty as claimed in this
proceeding.
However, this Court is statutorily charged with doing substantial justice between
the parties in the small claims part (Uniform City Court Act § 1804). The Court will not
allow the defendant herein to be unjustly enriched at plaintiff's expense. "Unjust
enrichment is a quasi-contract theory of recovery, and is an obligation imposed by
equity to prevent injustice, in the absence of an actual agreement between the parties
[*3]
concerned" (IDT Corp v Morgan Stanley, 12 NY3d 132 (2009)). Plaintiff must
demonstrate that the other party was enriched, at plaintiff's expense, and that it is
against equity and good conscience to permit the defendant to retain services without
compensation to plaintiff. Privity is not required for an unjust enrichment claim
(Mandarin Trading Ltd v Wildenstein, 16 NY3d 173 (2011); Sperry v Crompton Corp, 8
NY3d 204 (2007)).
Here, the Court finds that the services were provided by plaintiff and a benefit
was gained by defendant. A review of the facts show that neither party acted in a truly
business like manner and they should share the cost of remediation of the problems
created.
Plaintiff should have insisted upon a clause in the sales contract or a separate
writing from the buyer (defendant) or should have ceased to provide services.
Defendant should not be allowed to take advantage of this plaintiff with, as is credibly
found by this Court, knowledge of his responsibility. Plaintiff should not pay the full
price for the seller's failure to put a clause in the contract.
Judgment for plaintiff in the sum of nine hundred eighty seven dollars and eighty
three cents ($987.83).
The above constitutes the decision and order of the Court.
Dated: Mount Vernon, New York
July 23, 2012
HON. ADAM SEIDEN
Associate City Judge of Mount Vernon
To:Westchester Assessment Reduction
Specialists, Inc. [*4]
2 Gramatan Avenue, Suite 210
Mount Vernon, New York 10550
Okeith Smith
90 Bateman Avenue
Mount Vernon, New York 10552
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