Tina Mahoney, Claimant, v. Bernie Sommer, Defendant. (2024)

Claimant filed this action on March 7, 2024, seeking $5,000 from Defendant to recoup overpayment for defects in the Defendant's work. The matter proceeded to trial on April 18, 2024. There is no dispute that the Claimant gave the Defendant checks totaling $76,797 on a $48,787 contract. The Claimant essentially testified that she expected the work to be completed as if it were new construction. The Defendant essentially testified that he did the work consistent with the home's age and condition. The contract is silent on these matters.

General Business Law section 771 has very detailed provisions regarding the provisions in a home improvement contract such as the estimated completion date, lien law disclosures, how payments will be deposited in the contractor's account, how progress payments will be handled, and a disclosure about how to revoke the contract. This court has not flinched in resolving home improvement contract disputes against the contractor for their failure to comply with the General Business Law (see Goodspeed v Aiello, 76 Misc 3d 1219[A] [2022]). Also, the General Business Law section 773 provides for a civil penalty "not to exceed the greater of two hundred fifty dollars for each violation or five percent of the aggregate contract price specified in the home improvement contract" for "substantial violations" relating to the provisions of the home improvement contract. Similarly, this Court has also issued a civil penalty for substantial violations (see Reynolds v Lynch, 80 Misc 3d 1217[A] [2023]). The Claimant in this case provided payments totaling $76,797 on a $48,787 contract. The difference of $28,010 paid via several checks were essentially progress payments for work outside the scope of the original contract.

The Court finds that the Claimant has failed to prove her case by a fair preponderance of the evidence because if she was legitimately concerned about the quality of the work, she would have not only stopped the progress payments, but also would have refused to pay an extra $28,010 for additional work outside the scope of the original contract.

It is hereby ordered that the claim is dismissed.

This constitutes the decision and order of the court.

Dated: April 26, 2024

HON. JOSHUA P. BANNISTER

LITTLE FALLS CITY COURT JUDGE

Joshua P. Bannister, J.