Ferraro v. Perry's Brick Co.

• Decision Date: 07 January 2011
• Docket Number: Index No.: 8372
• Parties: Anthony Ferraro, Claimant, v. Perry's Brick Company, Defendant
• Court: New York Civil Court

2011 NY Slip Op 50055

Anthony Ferraro, Claimant,
v.
Perry's Brick Company, Defendant

Index No.: 8372

Civil Court of the City of New York
Of the State of New York
Richmond County

Decided on January 7, 2011

ATTORNEY FOR DEFENDANT:
The Law Firm of Duskin & Crowe

ATTORNEY FOR PLAINTIFF
Borrell & Riso, LLP

Katherine A. Levine, J.

This cases raises the mundane but infrequently litigated issue of what the term oak wood door means. Plaintiff Anthony Ferraro ("plaintiff" or "Ferraro") contends that defendant Perry's Brick Company ("defendant" or "Perry's Brick") breached the contract when it sold plaintiff a veneer oak door rather than a solid oak door. Since he did not receive what he bargained for — i.e. a solid oak wood door — plaintiff argues that the contract must be rescinded and that defendant must return all monies that he paid.

Facts

Plaintiff initially attempted to proffer himself as an expert in wood. Although he is a high school teacher of graphic design, Ferraro developed a speciality in renovating houses by doing "floors, walls, hardwood floors, doors, anything and everything in the house." (Tr. 5-6). He also was very familiar with veneering. The court finds that while plaintiff has some experience as a carpenter he is not an expert.

Plaintiff wanted to buy an impressive solid oak door to replace his old door. He decided

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that he wanted a KML door made by Anderson when he saw it advertised in the paper. Ferraro went to Perry's and inquired of Ms. Alicia Dadio ("Alicia" or "Dadio") — the sales person at Perry's — whether Perry's sold the particular door he had seen in the advertisement. Ferraro also specified that he was looking for a "solid oak door" and that he did not want anything else but that. (Tr. 8). Alicia stated that Perry's had that particular KML door entitled "Springline" — depicted in the advertisement.

Alicia testified that once Ferraro mentioned Anderson doors, she retrieved the brochure (defendant's "A") which showed the actual door unit that he wanted. While Ferraro claims that Anderson never showed him any brochures on the door, Dadio claims that she reviewed the brochure with him and he agreed that the page depicting a door that says "Arched" Springline was the one he wanted. Ferraro was adamant that he wanted an Anderson product. Dadio reviewed the various veneers that were offered — she got the measurements and spaces and generated a three page schematic of the door which reflected the dimensions and particulars that Ferraro wanted ("Plaintiff's "1"). The schematic states that the door is "oak," On September 1, 2005, they agreed upon a price of $11,996.03, which plaintiff signed off on and thereupon put a $5000 deposit (see plaintiff's"2", bill of sale). He also chose an expensive and decorative lock which cost $600 at the time of sale. Ferraro emphasized that Alicia never told him that the door he purchased was veneer as opposed to solid wood.

Ferraro stated that based upon his experience, a door that costs $12,000 would be a solid wood door and not a veneer door. He indicated that "solid oak is a very expensive wood" (Tr. 20). Ferraro based this testimony upon his past experience in ordering a fiber glass door which had cost about $7000. Prior to delivery, Ferraro went to Perry's to approve another schematic concerning the installation of the glass into the frame. The door was delivered on or about December 20, 2005.

Plaintiff also stated that Dadio never told him that he was getting a veneer door. However, in response to the question whether she ever told him he was getting a solid oak door, plaintiff responded "She told me it was an oak door." (Tr. 35). Plaintiff added that Ms. Dadio wrote the word "Oak" on the three page drawing of the door (plaintiff's 1).

He stated that had Dadio told him it was a veneer door he would not have bought it, especially for the price of $12,000.

Ferraro admitted on cross examination that the newspaper ad he brought in did not say solid oak; it just said that the door comes in various species of woods. The bill of sale did not state whether the door was solid oak or veneer. Dadio claims that she showed Ferraro a book entitled "KML by Anderson." (Defendant's "A), although Ferraro denied ever seeing this brochure. A door entitled "Springline" included within the group of doors entitled "Arched" appears to be the door drawn in plaintiff's "1". Page 34 of the brochure shows the interior of the door as "engineered timber stiles."

After he discovered that the door was veneer he did independent research and obtained

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another brochure from the manufacturing company (defendant's "B"). The brochure states that the door is made from the finest grades of natural wood and does not mention that the door is made of engineered wood. Upon questioning from the court, Ferraro admitted that neither the ad nor the brochure he looked at stated that the specific door he ordered from Perry's was solid oak— it merely showed species of wood used for the door, including "high quality oak." (Tr. 73-74).

Dadio stated there was a discussion as to how Anderson makes its door. She claims she told plaintiff that Anderson "has a solid wood door with engineered stiles and rails." (Tr. 9). She reiterated "has stiles and rails with a choice of veneer." She stated that Anderson does not manufacture any door that would be referred to as a solid oak door. The last page of the brochure gives a cutaway as to how the door is manufactured. The cutaway shows a "solid wood door, with the laminating wood core with the veneer." The Court asked: "a solid wood door with...?" to which Dadio replied: "veneer, oak veneer." On redirect, Dadio admitted that to her understanding "this was a solid wood door." (Tr. 11).

Ferraro first learned that the door he purchased was not solid oak when the person he hired to install the door tried to insert the lock or door knob. The door was installed a few weeks after delivery by one Izzy — who worked at Home Depot and who had experience with installing the doors. Izzy did the entire installation and was paid $650. The first time that Ferraro looked at the door was when Izzy took the paper off it. The door came within its frame as one piece but Izzy took the door out of the frame to lessen the weight of installation. Izzy then had to put the door back into the frame. They did not know that the door was veneered until it was installed and they attempted to put the lock in-the hole had already been bored for the lock and "you can actually see where the veneer separate (sic) from the core of the door" (Tr. 58) — there was only 1/8 wood veneer on both sides of the door and it was filled in the inside with a yellowish compound. The veneer could not hold this lock; only a solid oak door could hold it. The door would not hold the lock. It took the installer about day to install the door. Somewhere in the process of installing the door they noticed that the door was veneer.

Ferraro did not look at the door prior to Izzy taking it out of its frame (Tr. 63). He did not take the time to look at the door prior to Izzy's disassembling the frame from the door. Ferraro saw the big gaps between the top of the door and the side of the door and the frame when Izzy reinstalled the door into the frame. (Tr. 66). The leakage problem had nothing to do with the installation since the leakage came out of the middle of the door where the panels were and the panels and molding were not fitted properly. (Tr. 79-80).

Upon discovering that the door was not solid oak, Ferraro went to Perry's around Christmas time or early January and complained to both Alicia and a manager. He asked them to take the door back and stated he was going to complain to American Express. He told Dadio the door was not the one he had ordered. (Tr. 68). He told her he wanted it "rectified". He did not complain about anything else that day. He was very upset and his primary complaint was that the door was not solid oak plus the fact that it had the gaps (Tr: 68-70). When asked again what exactly he complained to Alicia about, Ferraro stated that "the door that I bought, or that you

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ordered for me, is not an oak door. It's an oak veneer door. I did not pay $12,000 for oak veneer." (Tr. 70).

Perry's did not agree to take the door back but stated they could "fashion" something to look like the lock he had wanted. First, Perry's sent over someone who told him that that the "door itself was not fitting right within the frame." (Tr. 26). The gentleman informed him that the new lock could not be installed because the door would not hold it. In addition to the door not being oak, Ferraro had other problems: the door itself was too short for the frame (space between top of the door and frame on top), and the molding they gave him to install inside his home was too wide for the width of the frame. A subsequent inspection by someone from Perry's revealed that the door was bowed. After not receiving satisfactory answers or repairs on the doors, Ferraro again informed Alicia that he was disappointed with the door, that he wanted "it taken care of and that he spent good money." (Tr. 46-47). Ferraro is still using the door because "I need a door on my home." (Tr. 77).

Black Millwork Co., the manufacturer of the door, received complaints about the door sold to Ferraro. In its job summary, Black Millwork (Plaintiff's 5) reported that Ferraro initially complained about air infiltration issues on...