Decided on April 2, 2008
|Tiberio v Barber
|2008 NY Slip Op 50833(U) [19 Misc 3d 1123(A)]
|Decided on April 2, 2008
|Just Ct, Vil. Of Red Hook, Dutchess County
|Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431.
|This opinion is uncorrected and will not be
published in the printed Official Reports.|
Just Ct, Vil. of Red Hook, Dutchess County
Dan Tiberio and April
Christina Barber, Defendant.
Jonah Triebwasser, J.
Plaintiffs are suing Defendant for $2,500.00 for damages allegedly caused by Defendant
while she was a non-paying tenant in Plaintiffs' home.
In April of 2007, Defendant sold Plaintiffs her home by contract (which is in
evidence, as are all of the other documents referred to in this decision.) On May 1, 2007,
Defendant and Plaintiffs entered into a subsequent written agreement whereby Defendant could
remain in the home, rent free, until June 30, 2007. It is the Court's review and analysis of these
documents that are key to this decision.
The Basement Floor
Section 19 (d) of the April 2007 Residential Contract of Sale (hereinafter "The Contract")
Defendant was required to deliver the premises in "broom clean condition." This requirement
was kept alive by the May 2007 Post Closure Occupancy Agreement (hereinafter "The
Agreement."). Section 10 of the Agreement indicates that the terms of the Contract "shall survive
the closing and shall continue in effect until the occupancy of the premises by [the Defendant]
ceases." Therefore, Defendant's obligation to leave the premises broom clean continued until she
left in late June. In addition, in paragraph 7 of the Agreement, Defendant promised to "remove
herself . . . and all possessions from the premises" on or before midnight on June 30,
2007 (emphasis added.)
Rather than complying with these promises, Defendant left the basement of the
premises in a deplorable, disgusting and revolting state. The photographic evidence, and the
sworn, uncontradicted testimony, prove that when Plaintiffs moved into their new home, they
were greeted by the sight and smell of a cat litter box loaded with moldering fecal matter as well
as a urine stained basement floor. In addition, the basement reeked of cat urine.
Defendant and her many witnesses claim that the home regularly smelled of cat
urine, and that Plaintiffs did not inspect the premises prior to the closing and therefore should not
be heard to complain now.
Although Plaintiffs would have been
well-advised to perform such an inspection, their failure to do so does not absolve Defendant
from her clear contractual duty to leave the premises broom clean and free of all of her property,
including the cat litter box and its fetid contents. Such failure on the part of the Defendant caused
the staining and smells complained of by the Plaintiffs.
Therefore, Defendant is responsible for the cost of remediating the basement floor.
Plaintiffs were put to the following expenses to remedy this situation: the Servpro Company
cleaned and deodorized the basement floor for which Plaintiffs paid $292.28 (including sales
tax.) In addition, Plaintiffs were required to seal the basement floor to reduce or eliminate the
persistent odors. This cost Plaintiffs $268.46 (including sales tax.)
The Heating and Air
In section 19 (e) of the Contract,
Defendant promised that all of the heating and air conditioning would be in working order at the
time of closing. As previously noted, this requirement was kept alive by the May 2007 Post
Closure Occupancy Agreement. Therefore, Defendant's obligation to have the air conditioning
and heating working carried over to the date that she vacated the premises. In addition, paragraph
6 of the Agreement indicates that Defendant promised to have the premises in the same condition
when she vacated as those conditions were when she began her rent-free tenancy. The Defendant
offered no evidence that the heating and air conditioning were not fully functional on the date she
began her rent-free tenancy (on or about May 1, 2007.)
Defendant would have us believe that Plaintiffs agreed to maintain the heat and
air-conditioning. She offered into evidence a fax copy of a Purchase Order Agreement which
contained such language. However, Plaintiffs produced the original of this document which did
not have such language. One of the Defendant's witnesses admitted under oath that the witness (a
real estate sales person) added that language after Plaintiffs initialed the original
document but did not have Plaintiffs re-initial to show their agreement with this new
requirement. Plaintiffs denied under oath that they agreed to pay for the maintenance of the
Therefore, Defendant is responsible for the cost of repair of the heating and air
conditioning. Plaintiffs were put to the following expenses to remedy this situation: The Heat
Doctors were paid a total of $1,242.06 (including sales tax) for the repairs to the heating and air
withdrew their claim for the carpet and therefore the Court will not consider those alleged
damages in this decision.
Plaintiffs allege that tiles were broken and had
to be repaired when a wood stove was removed from the premises. Unlike the basement and
heating/air conditioning issues, the condition of the tiles is not specifically addressed in the
Contract. Therefore, the issue of the condition of the tiles is [*3]controlled by section 12 of the Contract, wherein Plaintiffs agree to
accept the physical condition and state of repair of the premises "as is." As Plaintiffs failed to
inspect the premises at closing, the Court has no way of knowing if the chipped tiles complained
of were in that condition at closing, before closing, or during the Defendant's post closing
tenancy. Therefore, Plaintiffs' claim for replacement of the tiles is denied.
It is the decision
and order of this Court that the Defendant will pay to the Plaintiffs the total sum of $1,802.80,
determined as follows:
Servpro bill (cleaning of basement floor)$292.28
Lowes bill (sealing of basement floor)268.46
Heat Doctor (repair of heat and air conditioning)1,242.06
Total due Plaintinffs$ 1,802.80
Dated:Red Hook, New York
Dated: April 2, 2008
Justice, Town of Red Hook