You are here: / / Written Notice of Defect Under Housing Merchant Implied Warranty Waived...
,

Written Notice of Defect Under Housing Merchant Implied Warranty Waived by Undertaking Repair

The homeowners (defendants) refused to pay the builder (plaintiff) the final payment under a custom home building contract because of alleged defects in the home.  The homeowners counterclaimed for breach of the housing merchant implied warranty.  The Fourth Department determined the written-notice-of-the-defect warranty-requirement was not an express condition precedent and the  builder had waived the requirement by undertaking the repairs in the absence of written notice:

…[W]e agree with plaintiff that defendants failed to provide written notice of the alleged defects, which is a constructive condition precedent to asserting such a counterclaim (see General Business Law § 777-a [4] [a];…, plaintiff waived the written notice requirement by addressing the defects after receiving defendants’ oral notification of those defects… .We reject plaintiff’s contention that written notice of the alleged defects was an express condition precedent that was bargained for by the parties and could therefore not be waived. Contrary to plaintiff’s contention, the requirements of General Business Law § 777-a, including the written notice req uirement, are implied in every contract for the sale of a new home as a matter of public policy (§ 777-a [5]) and thus may be applied by the courts “to do justice andavoid hardship”….  Rich v Orlando, 521, 4th Dept 7-5-13

 

You might also like
THE PROOF OF CONSTRUCTIVE POSSESION OF WEAPONS WAS LEGALLY INSUFFICIENT (FOURTH DEPT).
THE STREET REPAIR WORK DONE BY THE CITY IN THE AREA WHERE PLAINTIFF SLIPPED AND FELL WAS DONE MORE THAN A YEAR BEFORE AND DETERIORATED GRADUALLY OVER TIME; IN ORDER FOR THE CITY TO BE LIABLE FOR CREATING THE DANGEROUS CONDITION THE DEFECT MUST HAVE BEEN THE IMMEDIATE RESULT OF THE WORK (FOURTH DEPT). ​
DWI COUNTS WERE LESSER INCLUSORY COUNTS OF VEHICULAR MANSLAUGHTER AND SHOULD HAVE BEEN DISMISSED, ERROR DID NOT REQUIRE PRESERVATION (FOURTH DEPT).
DEFENDANT WAS ENTITLED TO A HEARING ON THE MOTION TO VACATE THE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS DESPITE THE ABSENCE OF AN AFFIDAVIT FROM TRIAL COUNSEL (FOURTH DEPT).
THE LEVEL-THREE RISK ASSESSMENT WAS NOT MANDATORY AND THE EVIDENCE IN SUPPORT OF A DOWNWARD DEPARTURE SHOULD HAVE BEEN CONSIDERED; ON REMAND WRITTEN FINDINGS OF FACT AND CONCLUSIONS OF LAW ARE REQUIRED (FOURTH DEPT).
COUNTY’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD HAVE BEEN GRANTED; NO EVIDENCE SHELTER PERSONNEL WERE AWARE OF VICIOUS PROPENSITIES; HEALTH DEPARTMENT’S KNOWLEDGE THE DOG HAD BITTEN SOMEONE ELSE NOT IMPUTED TO SHELTER PERSONNEL; NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED.
ALTHOUGH THE VICTIM, AFTER IDENTIFYING DEFENDANT IN A PHOTO ARRAY, ASKED TO SEE A SECOND PHOTO ARRAY, HER IDENTIFICATION OF THE DEFENDANT WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE; THERE WAS A STRONG DISSENT (FOURTH DEPT). ​
The One-Year-and-Ninety-Day Time Limit for Bringing Suit Under the Public Authorities Law Is a Statute of Limitations, Not a Condition Precedent to Suit, and Is Therefore Subject to the Six-Month Extension for Recommencing a Suit Which Was Dismissed Without Prejudice Provided by CPLR 205(a)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Claim for Undistributed Goodwill Re: Dissolved Partnership Dismissed Violation of Zoning Ordinance Precludes Property Tax Exemption