MARSDEN v. CENTRAL PLUMBING DRAINS (2023)

Claimant Alexander E. Marsden filed this small claim on August 24, 2023, against Defendant Central Plumbing & Drains. The parties appeared for trial on September 28, 2023.

Claimant essentially testified that he hired Defendant to install a new well line for $4,000. The Claimant took issue with the quality of the Defendant's work. Specifically, the Claimant testified that: the pump was only rated for 25 feet, but that a 32 foot line was installed; the extra length combined with the defendant's failure to remove the old well line caused the stop valve to break; the Defendant choosing to replace the pump and expansion tank together rather than one at a time resulting in an increased fee; and, requiring an additional fee before repairing a block in the line between the well and the home. Claimant also testified that he hired another contractor to complete the job and that an obstruction was found in the line between the home and the well.

Defendant essentially testified that: he completed the job that he was paid to do; that the work on the line between the well and the home was outside the scope of the contract; and, that the real problem with the water flow was the blockage in the water line between the well and the home.

The court's duty in a small claims case is to do substantial justice between the parties according to the rules of substantive law (UCCA § 1804). This appears to be a mixed contract and negligence case.

General Business Law section 771 describes the requirements for a home improvement contract. There was no dispute between the parties as to definition of “well line” which is the water line in the well as opposed to the “house line” which is the water line between the well and the home. With that issue cleared up, the Court finds that the contract in this case complies in the most bare-bones way possible to the General Business Law. As such, the Court will not impose sanctions against the contractor that would be authorized under General Business Law section 773. However, the Court will suggest the Defendant draft future contracts with more particularity to avoid running afoul of the General Business Law.

Having dealt with the contract issue, the remaining issue is regarding the Defendant's negligence. “Common law negligence has been well established from the Kings Bench as: duty owed, duty breached, proximate causation to injury or damage. Ordinarily In the first instance, it is plaintiff's burden to prove by a preponderance of admissible evidence its prima facie case of negligence against defendant, thereby shifting burden to defendant to rebut liability in negligence by its preponderance of admissible evidence” (Phoenix Sutton Str Inc v Rizzotti, 71 Misc 3d 1207(A), [NY Civ Ct, Kings County 2021]; see also Mortensen v Memorial Hospital, 105 AD2d 151 [1st Dept, 1984]).

The Court observed the pictures of the stop valve. It appears that that valve is incased in a protective sieve which is merely bent and likely would not affect the functionality of the valve. The Courts find as the testimony of the Defendant that the actual problem with the water flow was the obstruction in the “house line”. However, even if the Court were to credit the testimony that the stop valve and the length of the well line were the proximate cause of the lack of water flow, the Claimant still would not be successful in the prosecution of this claim. In such an instance, it would be just as likely that the problem with the water flow was due to the length of the pipe combined with the broken stop valve as it would be from the obstruction found in the house line. This would be a 50/50 scenario. But the “preponderance of the evidence” standard is something more than 50/50. The Claimant must prove that it is more likely than not rather than simply that it is just as likely as the other possible cause.

Therefore, it is hereby ordered that judgment be entered in favor of the Defendant by dismissing the instant claim with prejudice.

This constitutes the decision and order of the court.

Joshua P. Bannister, J.