Odze v. Orange Cnty. Builders, Docket No. SC 593/2020

CourtNew York City Court
Writing for the CourtRICHARD J. GUERTIN, J.
Citation2022 NY Slip Op 22180
PartiesAlan J. Odze, Plaintiff, v. Orange County Builders, LLC, Defendant.
Docket NumberDocket No. SC 593/2020
Decision Date08 June 2022

2022 NY Slip Op 22180

Alan J. Odze, Plaintiff,

Orange County Builders, LLC, Defendant.

Docket No. SC 593/2020

City Court of Middletown, Orange County

June 8, 2022

The plaintiff proceeded pro se and the defendant was represented by Gary Goldstein, Esq.



This is a Small Claims action by Alan J. Odze ("the Plaintiff") against Orange County Builders, LLC ("the Defendant"). The Plaintiff appeared pro se, and the Defendant appeared with Gary Goldstein, Esq. The Plaintiff alleges the Defendant attempted three times to repair deep cracks in the front concrete steps ("the Steps") of a new home the Defendant built for the Plaintiff and further alleges the Steps were not built correctly. As a result, the Plaintiff is seeking $3, 000.00 in damages from the Defendant.

The Plaintiff submitted his Application to File Small Claims on July 15, 2020. The parties appeared in court for a virtual conference through the Microsoft Teams application on May 21, 2021, and the Court originally dismissed this action based on a belief the Plaintiff was alleging the same claim against the Defendant as the Plaintiff raised in an earlier case the Plaintiff brought against the Defendant, but the Court reversed that decision upon further review of the claim in this action compared to the claim raised in the earlier case. [1] The Court then scheduled the trial for June 29, 2021. The Court conducted a trial on that day and reserved decision.

At the trial, the Plaintiff testified, very credibly, under oath. The Defendant chose not to testify. There were no other witnesses. The Plaintiff and the Defendant also submitted documentary evidence for the Court's consideration.

Prior to the commencement of the trial, the Defendant, by counsel, moved to dismiss the Plaintiff's claim. The Defendant asserted the concept of res judicata and claimed this action was identical to and resolved by the prior action brought by the Plaintiff against the Defendant. The Defendant also claimed that any warranty period associated with the Steps had already expired.

The Court denied the claim of res judicata based on the fact the instant action involved an entirely different set of facts and circumstances than the first action. The Court reserved decision on the second aspect of the Defendant's motion in order to hear testimony and review evidence produced at the trial.

At the conclusion of the trial, the Defendant again moved to dismiss the Plaintiff's claim based on res judicata and based on the fact the Plaintiff experienced issues with the Steps before the prior action but did not raise the Steps as an issue in that action. The Court denied the Defendant's motion but reserved decision on the Plaintiff's claim.

For the reasons set forth below, and pursuant to UCCA § 1808 (a small claims judgment "shall not be deemed an adjudication of any fact at issue or found therein in any other action"), the Court denies both aspects of the Defendant's motion, determines that this claim is separate and apart from any prior claim by the Plaintiff, holds that the warranty applicable to the Steps, by law, allows the Plaintiff to go forward with his claim, and grants judgment to the Plaintiff.


The credible evidence at the trial showed the following:

The Defendant constructed a new, single family house for the Plaintiff on property located at 229 Sands Road, Town of Wallkill, New York ("the Property") pursuant to a contract between the parties dated May 26, 2017 ("the Contract," accepted into evidence as Defendant's Exhibit A.).

Attached to the Contract was a "Builder's Rider to Contract of Sale" ("the Builder's Rider"). Paragraph 3 of the Builder's Rider stated, in part, "that none of the terms hereof, except those specifically made to survive title closing, shall survive such title closing" (emphasis supplied).

Paragraph 5 of the Builder's Rider notes that the seller's responsibility, after closing of title or when the purchaser takes possession, whichever is sooner, is limited to completion of pre-closing punch list items and "[p]erformance of warranty obligations under the provisions of the Limited Warranty annexed hereto and made a part hereof." According to paragraph 11 of the Builder's Rider, "[t]he seller makes not (sic) housing merchant implied warranty or any other warranties, express or implied, in connection with this contract of sale other than the warranty annexed hereto and made a part hereof. The purchasers (sic) acknowledge that they are aware of the warranty provisions as provided by Article 36-B of the New York General Business Law and agrees that said provisions are modified by the limited warranty annexed hereto."

There is no language in either paragraph 5 or paragraph 11 of the Builder's Rider stating that the terms of those paragraphs "specifically... survive title closing" as required in paragraph 3 of the Builder's Rider. The only provisions of the Contract that were described as specifically surviving closing are paragraph 18 of the Builder's Rider and paragraph 1 (e) of a separately attached document entitled Rider to Contract of Sale. [2]

Attached at the end of the Contract are twelve pages [3]. The first of those pages is captioned "GENERAL ONE-YEAR WARRANTY," and in the first paragraph on that page it states, in part, the following: "the seller guarantees the purchaser against defects described below provided that such defects are brought to the seller's attention in writing [4] during the one-year warranty period commencing with the date of possession or closing of title, whichever occurs first, or within such shorter period as may be specifically stated herein. These guarantees are designed to protect the purchaser from faulty construction and defective materials; they do not apply to defects caused by normal wear and tear.... No steps taken by the seller to correct defects shall act to extend the warranty period beyond the initial term of one year.... This warranty, is applicable only to the matters guaranteed herein and only if the noted defects are reported in writing before the end of the one-year warranty period or such shorter period as may apply." The rest of that page, and the following two pages, list guarantees for various components of the house (such as roofs, heating, and masonry) and also lists "non-warrantable items." For example, the masonry category guarantees against structural defects for a period of one year and states "[o]nly those cracks which are of such a magnitude so as substantially to interrupt the place [5] of the surface, or affect its structural value, will be the responsibility of the seller to repair." The remaining nine pages thereafter deal with "ACCEPTED STANDARDS" and "PERFORMANCE STANDARDS" for various components (such as site work, concrete, masonry, doors and windows, and finishes), and some components, such as concrete and masonry, are limited to "first year only." For example, in paragraph 2 (B) (7) under "CONCRETE" it states "[s]toops, steps or garage floors shall not settle, heave or separate in excess of 1 inch from the house structures. Builder-Seller will take whatever corrective action is required to meet the Performance Standard." In paragraph 3 (A) (2) under "MASONRY COVERAGE (First Year Only)," for "[c]racks in masonry wall or veneer" it states "[s]mall hairline cracks due to shrinkage are common in mortar joints in masonry construction. Cracks greater than 3/8 inch in width are considered excessive."

The twelve pages attached to the Contract do not include all of the language required under New York General Business Law § 777-b (3) and (4) to exclude the housing merchant implied warranty as set forth in General Business Law § 777-a. Omitted from the warranty provisions contained in the twelve pages attached to the Contract is language specifically required under General Business Law § 777-b (4) (a), (b), (c), (g) and (h). [6]

The parties closed on the transaction in March 2018, and the Plaintiff took possession of the Property in March 2018. Not long after the Plaintiff took possession of the Property, the Steps developed hairline cracks next to the landing. Representatives of the Defendant told the Plaintiff the cracks were normal. In September or October 2018, however, some of the Defendant's workers came to the Property, chipped the cracks, and filled in the cracks on the Steps.

A few months after the Defendant's workers attempted to repair the cracks in the Steps, the Steps developed larger cracks in the front stoop area and on the sides. In May 2019, one of the Defendant's workers again came to the Property, chipped the cracks, and filled in the cracks on the Steps.

The cracks in the Steps continued to appear and spread. In September 2019, "Keith" representing the Defendant, came to the Property, chipped the cracks, and filled them again (see Plaintiff's Exhibit 4, in evidence, which was a copy of a text message on September 16, 2019 from "Keith @ Catalyst" to the Plaintiff asking "[w]hat time is a good time for me to come by and take care of the stoop").


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