Rosen v. Tile Boutique Inc.
| Decision Date | 16 September 2022 |
| Docket Number | Index No. SC22-039 |
| Citation | 2022 NY Slip Op 34001 (U) |
| Parties | KENNETH ROSEN, Plaintiff, v. TILE BOUTIQUE INC., Defendant. |
| Court | New York City Court |
Unpublished Opinion
Plaintiff Pro Se
Defendant by Clifford H. Greene, Esq., Scarsdale, NY
This is a small claims action for breach of warranty in connection with the tiling of plaintiff's bathroom by defendant.
At the trial, plaintiff testified that on about February 21, 2021 defendant installed 96" x 48" tiles in plaintiff's home bathroom. Some three months later, in May, 2021 when plaintiff first used the shower, the tiles cracked. Plaintiff said during a steam shower, he heard a pop and saw the tiles were cracked. Plaintiff said defendant's principal agreed to fix the tile but did not do so. The evidence showed that the cost for replacement tiles was $1,516.81.
Plaintiff offered no evidence as to what caused the tiles to crack.
While plaintiff claimed the installation method used to install the tiles was incorrect and inconsistent with good practice in the trade, plaintiff did not have the requisite knowledge or expertise to testify as an expert. Instead, plaintiff sought to introduce articles from the Internet, but the Court did not permit their introduction.
Defendant's principal also testified but did not explain why the tiles cracked but offered several possible explanations - none of which sufficient to identify the cause of the cracking.
Plaintiff claims the defendant breached a warranty. No written warranty, in fact no writing at all, was introduced. Plaintiff claims there was an implied warranty, relying on Lange v. Blake, 58 A.D.2d 1034, 397 N.Y.S.2d 290 [4thDept 1977.]
Lange involved the construction of a septic system for a new home. The Appellate Division did not actually decide that there was any implied warranty for services. It found the defendant urges that under Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792, there is no liability for implied warranty on a contract for services, only on the sale of goods. Although there is support for defendant's position (see Sears, Roebuck & Co. v. Enco Associates, 83 Misc.2d 552, 370 N.Y.S.2d 338, affd 54 A.D.2d 13, 385 N.Y.S.2d 613; Aegis Productions, Inc. v Arriflex Corp. of America, 25 A.D.2d 639, 268 N.Y.S.2d 185), as well as for the opposing view (Centrella v. Holland Construction Corp., 82 Misc.2d 537, 370 N.Y.S.2d 832; Town of Ogden v. Earl R. Howarth & Sons, Inc., 58 Misc.2d 213, 294 N.Y.S.2d 430; Staff v. Lido Dunes, Inc., 47 Misc.2d 322, 262 N.Y.S.2d 544), there is no need to decide that question.
It is beyond cavil that there are implied warranties for the sale of goods. UCC 2-314 () & UCC 2-315 (Implied Warranty of Fitness for Particular Purpose). These warranties apply only to goods. UCC 2-102. (Article applies to transactions in goods). "No warranty attaches to the performance of a service" (Rochester Fund Muns. v. Amsterdam Mun. Leasing Corp., 296 A.D.2d 785, 787, 746 N.Y.S.2d 512 [2002] [internal quotation marks and citation omitted]; see Torok v. Moore's Flatwork & Founds., LLC, 106 A.D.3d 1421, 1423, 966 N.Y.S.2d 572 [2013]. Markel Ins. Co. v Bottini Fuel, 116 A.D.3d 1143, 1147, 983 N.Y.S.2d 637 [3d Dept 2014].
In Aegis Productions, Inc. v. Arriflex Corp. of America, 25 A.D.2d 639, 268 N.Y.S.2d 185 [1st Dept 1966) the Appellate Division said warranties are limited to sales of goods and do not attach to performance of service and if a service is performed negligently, a cause of action accruing is for that negligence and if performance of services constitutes breach of contract, the action accruing is for that breach but there is no cause of action for breach of warranty in connection with services.
Separating the tile from the installation to consider the transaction the sale of goods and thus fall within the UCC provides no comfort for plaintiff. For a product to flunk the UCC 2-314 merchantability test, it must contain an inherent defect. The courts find goods to be unfit for their ordinary purposes when they can identify one of three general types of defects: manufacturing defects, design defects, and failure to give the buyer proper instructions with respect to the goods. 1 The Law of Product Warranties § 5:5. Here, there was no evidence the tiles were inherently defective, contained a design defect, or came with any warnings.
Thus, there is no basis for a claim of breach of implied warranty. There might be a claim for a breach of contract but there was no evidence of any contract terms, let alone any breach of any term. Plaintiff's claim could also sound in negligence in that it might be claimed that defendant negligently installed the tiles. However, there was no proof that the defendant deviated from the ordinary standard of care or that that deviation was the proximate cause of the cracking of the tiles.
This appears to be yet another example that Small Claims is often a snare for the unwary. Perhaps beguiled by televised simulated court programming, the public are misled into the belief that in a 22-minute segment, if you tell your story and it seems unfair, then you will prevail. Here, the plaintiff appears to have done extensive research. He intelligently presented his arguments. However, his unfamiliarity with the laws of evidence...
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