SCHARDT v. POSSON

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Supreme Court, Appellate Division, Third Department, New York.

Paul SCHARDT et al., Respondents, v. Douglas POSSON, Doing Business as Posson Pump Service, Appellant.

Decided: June 28, 2007

Before:  MERCURE, J.P., CREW III, PETERS, ROSE and LAHTINEN, JJ. Ross Law Offices, Middleburgh (Thomas F. Garner of counsel), for appellant. John K. Sharkey, Niskayuna, for respondents.

Appeal from a judgment of the Supreme Court (Best, J.), entered March 2, 2006 in Montgomery County, upon a decision of the court in favor of plaintiffs.

Plaintiffs contracted to purchase residential real property and hired defendant as an expert to test the flow capacity of an existing well on the premises.   Alleging that defendant misreported the quantity of water that could be produced by the well, plaintiffs commenced this action and presented evidence at a nonjury trial that they had relied on defendant's report of an adequate water supply to their detriment because the well was, in fact, incapable of yielding sufficient water for use of the property as a residence.   Although defendant presented evidence that his testing methods conformed to industry standards, he admitted that he did not report the recovery rate measured during his testing.   Supreme Court found that defendant had misrepresented the well's capacity and plaintiffs reasonably relied upon his report in purchasing the property.   Based upon the testimony of plaintiffs' appraiser, the court awarded damages in the amount of $48,169.   Defendant appeals.

 We affirm.   Supreme Court's findings depended primarily on defendant's own admissions and the court's assessment of the credibility of plaintiffs' witnesses (see Eddyville Corp. v. Relyea, 35 A.D.3d 1063, 1064, 827 N.Y.S.2d 315 [2006];  Salvador v. Uncle Sam Auctions & Realty, 30 A.D.3d 861, 861, 819 N.Y.S.2d 116 [2006] ).   The record contains evidence that a well's recovery rate is a critical measure of a well's capacity, the rate revealed by defendant's testing is inadequate for residential use and defendant departed from industry standards by failing to report that rate to plaintiffs.   Further, plaintiffs' loss was not shown to be due to any unforeseeable, intervening event.

 Equally unpersuasive is defendant's contention that plaintiffs did not mitigate their damages by selecting the most cost-effective remedy for their water shortage.   During cross-examination of plaintiffs' witnesses, they testified that a new or deeper well likely would not be effective and using the pond on the premises would not be acceptable in the residential marketplace.   Defendant thereafter presented no evidence that any alternative could have produced sufficient potable water (see New York Tel. Co. v. Harrison & Burrowes Bridge Contrs., Inc., 3 A.D.3d 606, 609, 771 N.Y.S.2d 187 [2004];  Rebh v. Lake George Ventures, 241 A.D.2d 801, 803, 660 N.Y.S.2d 901 [1997] ).

 Finally, as the summary appraisal report admitted into evidence in support of plaintiffs' damages claim was the original report of plaintiffs' appraiser, its admission did not violate the best evidence rule (see Schozer v. William Penn Life Ins. Co. of New York, 84 N.Y.2d 639, 643, 620 N.Y.S.2d 797, 644 N.E.2d 1353 [1994] ).

ORDERED that the judgment is affirmed, with costs.

ROSE, J.

MERCURE, J.P., CREW III, PETERS and LAHTINEN, JJ., concur.

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