         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1289
CA 10-00539
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND GORSKI, JJ.


RICHARD TRIFICANA, MARTHA TRIFICANA, DOUGLAS
SINGLETON, JAN SINGLETON, GLORIA M. IZZO,
PATRICIA A. MORSE, ALBERTA M. ROSSI, DONALD
CARDIFF, DIANE CARDIFF, AND ELLEN SUE
SESTITO, PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

ROBERT M. CARRIER, INDIVIDUALLY AND AS
OFFICER/AGENT OF LEGEND DEVELOPERS, LLC,
ET AL., DEFENDANTS,
DAVID L. VICKERS, INDIVIDUALLY AND AS
OFFICER/AGENT OF LEGEND DEVELOPERS, LLC,
AND LEGEND DEVELOPERS, LLC,
DEFENDANTS-RESPONDENTS.


THE LONGERETTA LAW FIRM, UTICA (SIMONE M. SHAHEEN OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

SAUNDERS KAHLER, L.L.P., UTICA (GREGORY J. AMOROSO OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Oneida County (Brian
F. DeJoseph, J.), entered December 14, 2009. The order, insofar as
appealed from, granted in part the motion of defendants David L.
Vickers, individually and as officer/agent of Legend Developers, LLC,
and Legend Developers, LLC by dismissing plaintiffs’ breach of
warranty claims.

     It is hereby ORDERED that the order insofar as appealed from is
reversed on the law without costs, the motion of defendants is denied
in its entirety and any breach of warranty causes of action against
defendants David L. Vickers, individually and as officer/agent of
Legend Developers, LLC, and Legend Developers, LLC are reinstated.

     Memorandum: Plaintiffs commenced these consolidated actions
seeking damages arising from the allegedly negligent construction of
the homes purchased by them in a housing development. Supreme Court
granted defendants’ pre-answer motion in part by dismissing any causes
of action against David L. Vickers, individually and as officer/agent
of Legend Developers, LLC, and Legend Developers, LLC (hereafter,
Legend defendants) alleging breach of warranty based on the violation
of General Business Law article 36-B. On appeal, plaintiffs contend
that the court erred in granting that part of defendants’ motion. We
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                                                         CA 10-00539

agree.

     To the extent that section 777-a of the General Business Law,
entitled “Housing merchant implied warranty,” provides in subdivision
(4) (a) that “[t]he owner[s] . . . shall afford the builder reasonable
opportunity to inspect, test and repair the portion of the home to
which the warranty claim relates,” we conclude that such a
requirement, unlike the written notice provision in the preceding
sentence of that subdivision, is not a condition precedent to
asserting a cause of action for breach of warranty. In further
contrast to the written notice provision, the issue whether a
“reasonable” opportunity has been afforded to a builder can be a fact-
laden determination, the resolution of which prior to consideration of
the merits of a claim in the context of a lawsuit would result in
duplicative and unnecessary litigation. Further, although subdivision
(4) (b) provides that an action for breach of a housing merchant
implied warranty “may be commenced within one year after the last date
on which such repairs are performed,” there is no statutory language
prohibiting the commencement of an action prior to such time. Indeed,
as our concurring colleague agrees, that language merely acts as a
toll in the event that a repair is commenced. We therefore conclude
that the duty to afford a defendant an opportunity to inspect, test
and repair an alleged defect is not a condition precedent to asserting
a cause of action for breach of warranty, and we further conclude that
the failure to afford a defendant such an opportunity may be asserted
as an affirmative defense in response to such a cause of action.

     Moreover, “[i]n order to prevail on a CPLR 3211 (a) (1) motion,
the moving party must show that the documentary evidence [submitted in
support thereof] conclusively refutes plaintiffs[’] . . . allegations”
(AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5
NY3d 582, 590-591; see Kumar v American Tr. Ins. Co., 49 AD3d 1353,
1354), and defendants failed to meet that burden here. The letter
from plaintiffs’ counsel, upon which defendants relied in support of
their motion with respect to breach of warranty, unambiguously offered
the Legend defendants the opportunity to inspect and test the portions
of the homes in question, as required by the statute. To the extent
that the letter purports to deny the Legend defendants the opportunity
to repair, we conclude that defendants failed to establish as a matter
of law that the repair offer would have been sufficient to remedy the
alleged defects (see Hirshorn v Little Lake Estates, 251 AD2d 377,
379). Thus, defendants failed to meet their initial burden in support
of their motion with respect to any causes of action for breach of
warranty against the Legend defendants (see generally Zuckerman v City
of New York, 49 NY2d 557, 562).

     All concur except CARNI, J., who concurs in the result in the
following Memorandum: I respectfully disagree with the conclusion of
my colleagues that the legislative intent is unclear with respect to
whether the “reasonable opportunity to inspect, test and repair”
requirement of General Business Law § 777-a (4) (a) is a condition
precedent to the commencement of an action alleging breach of warranty
based on the violation of General Business Law article 36-B. In my
view, the Legislature intended the requirement to be a condition
                                 -3-                          1289
                                                         CA 10-00539

precedent. Inasmuch as I agree with my colleagues that defendants
failed to meet their burden on their pre-answer motion of establishing
that plaintiffs failed to provide a reasonable opportunity to inspect
and test the portions of the homes in question prior to the
commencement of this action, I concur in the result reached by my
colleagues.

     General Business Law § 777-a (4) (a) provides that “[w]ritten
notice of a warranty claim for breach of a housing merchant implied
warranty must be received by the builder prior to the commencement of
any action under . . . subdivision [(4) (b)] . . . The owner and
occupant of the home shall afford the builder reasonable opportunity
to inspect, test and repair the portion of the home to which the
warranty claim relates” (emphasis added). Subdivision (4) (b) of the
statute provides that, “[i]f the builder makes repairs in response to
a warranty claim under . . . subdivision [(4) (a)], an action with
respect to such claim may be commenced within one year after the last
date on which such repairs are performed.” Subdivision (4) (b)
essentially extends or tolls the period of limitations for an action
on the housing merchant implied warranty if repairs are made by the
builder. It simply makes no sense that the Legislature would intend
that the “reasonable opportunity,” inter alia, to repair would be
afforded after an action has been commenced. Once litigation has
begun, the parties’ relationship has deteriorated, costs have been
incurred and judicial resources have been consumed. Likewise, there
would be no purpose to the requirement that the owner shall serve the
builder with written notice of a warranty claim if a “reasonable
opportunity” to remedy the defect was not contemplated by the
Legislature prior to commencement of an action on the warranty. The
extension or tolling of the period of limitations until the last
repair has been made is clearly part of the Legislature’s intent to
require the parties to utilize the statutory written notice and
“reasonable opportunity” mechanism as a means to avoid litigation.
Moreover, once litigation has commenced, CPLR article 31 discovery
devices provide the builder with adequate statutory means, inter alia,
to inspect and test the portion of the home to which the warranty
claim relates (see CPLR 3120 [1] [ii]). Thus, subdivision (4) (a)
would be redundant if the inspection and testing was intended to take
place after an action had been commenced on the warranty. While the
nature and scope of the “reasonable opportunity” is not precisely
defined in the statute, that lack of specificity is no barrier to the
conclusion that the “reasonable opportunity” was intended to be
afforded prior to the commencement of the action and is therefore a
condition precedent to the commencement of an action. It goes without
saying that statutes are often revised by the Legislature over the
course of time, and perhaps the Legislature will see fit to adding a
specific definition of “reasonable opportunity” or a precise waiting
period after service of the notice of claim before an action may be
commenced (see e.g. General Municipal Law § 50-i [1]). Nevertheless,
the current absence of such a definition should not preclude us from
performing our duty to construe and interpret the statute such that
our construction thereof is “the one which more nearly carries out
what appears to be the general legislative design on the subject”
(People ex rel. Cohen v Rattigan, 157 NYS 1003, 1007 [Bronx County Ct
                                -4-                 1289
                                               CA 10-00539

1915], affd 172 App Div 957).




Entered:   February 10, 2011          Patricia L. Morgan
                                      Clerk of the Court
