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
Triebwasser, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 2, 2008
Just Ct, Vil. of Red Hook, Dutchess County

Dan Tiberio and April Tiberio, Plaintiffs,


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

In 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. [*2]

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 Conditioning

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 furnace.

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 conditioning.

The Carpet

Plaintiffs withdrew their claim for the carpet and therefore the Court will not consider those alleged damages in this decision.

The Broken Tiles

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


Jonah Triebwasser,

Justice, Town of Red Hook