[*1]
Baker v Bay Terrace Coop Section XII
2010 NY Slip Op 51230(U) [28 Misc 3d 1209(A)]
Decided on July 14, 2010
Civil Court Of The City Of New York, Queens County
Edwards, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 14, 2010
Civil Court of the City of New York, Queens County


Rudolf Baker, Claimant,

against

Bay Terrace Coop Section XII, Defendant.




SCQ 2230/10



The plaintiff was an unrepresented litigant and the defendant was represented by Jeffrey V. Basso, Esq. of Schneider Mitola, LLP, 666 Old Country Road, Garden City, NY 11530, 516.393.555.

Genine D. Edwards, J.



In this small claims matter, the claimant is seeking damages from the defendant, Bay Terrace Cooperative Section XII ("Cooperative"), for defective repairs and damage caused to real property.

FACTS


The claimant, Rudolph Baker, has resided in the Cooperative's building for more than thirty years. Initially, he signed all documents necessary to become a shareholder in the Cooperative.

For some time, the Cooperative was experiencing problems with its plumbing system. The building had leaks and the Cooperative was unable to determine their origin. Mr. Baker, however, did not experience any leaks in his dwelling unit. He alleges that in pursuit of ascertaining the origin of the leaks the Cooperative damaged his bathrooms, then performed defective repairs.

In early 2010, the Cooperative requested access to the claimant's apartment to ascertain the source of the leaks. McCready & Rice Plumbing, Inc., the Cooperative's agent, made holes in the ceiling and walls in one of the claimant's bathrooms and destroyed wallpaper in the other. Thereafter, the Cooperative hired Luxury Painting and Restoration to plaster and prime the walls and ceilings, but it would not paint or apply wallpaper to the bathrooms because it considered such action to be "decorative". Claimant hired a contractor to restore his walls and ceilings to their original condition. He expended $850.00 for this restoration. The Cooperative asserts that based upon various contractual provisions, it is not responsible for Mr. Baker's expenditures.

The Cooperative has a contractual residential relationship with the residents of the individual apartments. All shareholders, including Mr. Baker, signed an Occupancy Agreement wherein they agreed to follow the rules and regulations of the Cooperative.Article 11 of the Occupancy Agreement specifically concerns repairs in the Cooperative. It states that the Cooperative "shall provide and pay for all necessary repairs, maintenance and replacements, except as specified by clause (a) of this Article". The clause (a) exemption includes: "any repairs or maintenance necessitated by [a Member's] own negligence or misuse" and "any [*2]redecoration of [a Member's] own dwelling unit". According to the Offering Statement, "[a]ll painting of premises subsequent to initial occupancy by a stockholder, including the priming of the walls, if necessary, are the stockholder's obligation".On December 10, 2007, the Cooperative issued a memo to all shareholders clarifying its policy concerning repairs. The memo was filed with the cooperative's Rules and Regulations. It states:

Article 11 of Occupancy Agreement for Bay Terrace Cooperative, Section XII states the Member agrees to repair and maintain his dwelling unit at his own expense for any repairs or maintenance necessitated by his own negligence and misuse and any redecoration of his own dwelling. In the event of leaks caused by broken pipes or rain, the Cooperative is responsible for plaster walls and ceilings. The Cooperative will plaster and prime coat the walls and ceiling. However, painting is considered decorative and is the responsibility of the shareholder.

This is the pinnacle rule concerning leak repairs in the Cooperative. It is essential to the administration of substantial justice in this case.

There are three issues in contest here. Were the repairs of Mr. Baker's apartment necessitated by his own negligence or misuse? Was the Cooperative's "exploratory work" to locate the origin of the leak an event caused by broken pipes or rain that would make it responsible for plastering walls and ceilings? In the case of restoration due to "exploratory work", is painting considered decorative?

LAWA contract must be construed according to the expressed intent of the parties and effect must be given to the intent as indicated by the language used. See NY Jur. 2d Contracts § 223. See also Wallace v. 600 Partners Co., 86 NY2d 543, 634 NYS2d 669 (1995); Fidelity New York FSB v. Madden, 212 AD2d 572; 622 NYS2d 744 (2d Dept. 1995). The best approach is to read the entire agreement as a whole and consider the entirety of the agreement in the context of the parties' relationship, rather than "culling distinct provisions out of an entire agreement". NY Prac. Comm. § 59:16 (quoting Road Associates, LLC v. Intern. Business Machines Corp., 4 NY3d 272, 793 NYS2d 835 (2005)). See also Matter of Riconda, 90 NY2d 733, 665 NYS2d 392 (1997). "When the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving practical interpretation to the language employed and the parties' reasonable expectations". Lobacz v. Lobacz,72 AD3d 653, 897 NYS2d 516 (2d Dept. 2010) (quoting Willsey v. Gjuraj,65 AD3d 1228, 1230, 885 NYS2d 528 (2d Dept. 2009)). "Where words or other manifestations of intention bear more than one reasonable meaning an interpretation is preferred which operates more strongly against the party from which they proceed, unless their use by him is prescribed by law". Restatement (First) of Contracts § 236.


DISCUSSION

Applying the foregoing principles to the instant matter, Mr. Baker's repairs were not

"necessitated by his own negligence and misuse and any redecoration of his own dwelling".

Indeed, both parties agree that there were no leaks in Mr. Baker's bathrooms and that McCready & Rice Plumbing, Inc. entered his apartment to do "exploratory work" in search of a leak. The leak was located on a corroded nipple in a neighboring apartment. There was no testimony that the leak was caused by "broken pipes or rain".

Courts frequently resort to a dictionary to determine the plain and ordinary meaning of [*3]contractual language. The definition of the word "decorative" is essential to understanding whether painting is the responsibility of Mr. Baker or the Cooperative. "Decorative" is defined as "serving to make something look more attractive or ornamental". There was paint and wallpaper on the walls of Mr. Baker's bathrooms before the Cooperative started its "exploratory work." Not only would the paint and wallpaper have remain unaffected if the Cooperative had not entered Mr. Baker's apartment, he would not have incurred an expense but for the Cooperative's "exploratory work".

The Cooperative came to Mr. Baker, not vice versa. It met his bathrooms in one condition, and damaged them in pursuit of a solution for the entire building, not specifically for Mr. Baker. Since the proffered contractual provisions do not support the Cooperative's defense and there is no contractual provision for "exploratory work" or damages caused to a

stockholder's apartment by the Cooperative, the defendant is completely liable for the damages sustained by Mr. Baker.

Accordingly, judgment in favor of the claimant, Rudolf Baker, in the amount of $850.00 as well as interest and costs.

Dated: July 14, 2010____________________________

Genine D. Edwards

Judge of Civil Court [*4]