Plaintiff homeowner commenced this action by Summons and Complaint on July 8, 2005. Plaintiff claimed defective work, breach of warranty, and breach of contract. Defendant DeRosa filed an Answer on January 6, 2005. DeRosa included a counter-claim that the Plaintiff's action was frivolous. In January 2006, Defendant DeRosa then filed a Third-party complaint against Nicolia Ready Mix Inc upon the grounds that the concrete it delivered to DeRosa was defective. Nicolia answered in May 2006. All matters were consolidated by Court Order on June 1, 2007. Pursuant to NY Civ. Pract. Law and Rules §325(d), the case was transferred to this Court for trial. A trial-without-jury was conducted whereat the only witnesses were those called upon by Plaintiff. Plaintiff argued that Defendant DeRosa installed a concrete patio that ultimately cracked and became discolored. DeRosa argued that, after completing the concrete patio, Plaintiff had a "change of heart" and decided he wanted a patio constructed of pavers instead of concrete. Defendant Nicolia argued that it was an improper party because there was no proof that it delivered the concrete used by the Defendant, nor that the concrete was defective. Defendant Nicolia also argued it was a weak case because the Plaintiff's photographs were old, and taken after-the-fact almost 10 years after the patio was installed. After opening arguments, Defendant DeRosa acknowledged he did not have a Suffolk County license. He withdrew his counterclaim against the Plaintiff. At the end of all testimony, the parties consented to discontinuing the action against Defendant Nicolia. The Court reserved decision on the remaining issues.

TESTIMONY

Plaintiff testified that in 2001 a colleague referred him to the Defendant DeRosa to install a patio because "his paving work was excellent." Plaintiff hired Defendant to install a walk and stairs with pavers, and a concrete patio around the pool. A written estimate was submitted, dated June 5, 2001, signed by Diane Izzo, which provided:

cement around pool; block perimiter [sic] and block expansion joints; slide side of pool 4 ft wide and around slide; patch by gate with brick border; stoop 7 ft wide; top step 3 ft full brick with block bull nose. $8,500.00.

Contractor will not be responsible for cracks developing in cement as a result of seasonal ground expansion or raised pavement due to tree roots.

Defendant started his construction company in 2001. He confirmed that he first installed Plaintiff's walkway and front steps before being asked to install the concrete patio. He completed the concrete patio in 2002. He had to break up old existing concrete, remove it, and pour the new concrete. The patio was about 600-650 square feet. Defendant described how he packed the underlying dirt, laid steel mesh, and poured the concrete. Five workers helped with the job, transporting about three truck deliveries of concrete by wheel barrow from the road to the pool area. The concrete was four inches thick which was finished with a smooth finish as Plaintiff requested. Defendant stated that Plaintiff was happy with the job, and that Plaintiff did not call the Defendant back until almost 2 years later when Defendant was asked to bid on a driveway installation. Defendant said he looked at the pool area and he observed only a hand-sized portion of one concrete section that had some peeling. Defendant offered to fix the small area by removing the entire concrete section and re-pouring new concrete. Plaintiff did not want the new section poured. Instead, Plaintiff wanted the entire concrete patio removed and pavers installed instead. Defendant denied ever seeing the discoloration described by Plaintiff. Defendant described that when he visited the Plaintiff's house in 2004 he observed bags on the concrete which he believed were bags of de-icing salt.

Plaintiff's last witness owned his own company which installed concrete patios and walls. He worked with concrete for more than 12 years and acknowledged that expertise in concrete work is based more on hands-on experience than from taking academic courses. The Court qualified the witness as an expert. The expert said he first saw Plaintiff's concrete patio 5-6 years after it was installed. He also admitted he did other concrete work for Plaintiff. When he saw the patio in 2007, he observed a "peeling" off the top of the concrete. He suggested that peeling could be caused by water trapped in the concrete before the surface was finished with the trowel. The expert said that peeling occurred on no less than 12 concrete jobs he installed. He explained that it could take up to 2 years before peeling could become noticeable. He described how a contractor must monitor the concrete coming from the truck by feeling the concrete for consistency which is than adjusted by adding water to the mix in the truck. However, he could not state that the peeling on Plaintiff's patio was caused by excess water. When shown the Plaintiff's photographs, he could not identify what parts of the patio were depicted in the photographs. He also testified that some of the colors in the photographs he personally observed, but that other colors he did not. When asked about other things that might affect concrete, he acknowledged that rock salt on the concrete could cause discoloration, and affect the surface of the concrete. He also stated that pool chemicals, such as chlorine bleach and acids, could affect the concrete surface and cause peeling. Without hesitating he stated that he could not give an opinion about when the discoloration and peeling might have occurred. Significantly, the expert could not say whether the concrete conditions were caused by either the Plaintiff or the Defendant.

ANALYSIS

In a matter such as this, it is the province and indeed the obligation of the trial court to assess and determine matters of credibility. Morgan v McCaffrey, 14 AD3d 670 (2d Dep't 2005); Matter of Liccione v Michael A., 65 NY2d 826 (1985). Here, the burden is upon the plaintiff to plead and prove its direct case by a fair preponderance of the credible, relevant and material evidence. Prince-Richardson on Evidence, §3-210; Torem v Central Avenue Rest, 133 AD2d 25 (1st Dep't 1987).Under [our] system of adversary litigation, the task of furnishing evidence rests solely upon the parties, neither the judge nor the [*3]jury having any obligation or duty in this regard. Fisch on New York Evidence, Second Edition, §1087, Lond Publications 1977/2008. "Credible evidence" is:

the testimony or exhibits that is found to be worthy to be believed. A preponderance of the evidence means the greater part of such evidence. That does not mean the greater number of witnesses or the greater length of time taken by either side. The phrase refers to the quality of the evidence, that is, its convincing quality, the weight and the effect that it has on your minds. The law requires that in order for the plaintiff to prevail on a claim, the evidence that supports his claim must appeal to you as more nearly representing what took place than the evidence opposed to his claim. If it does not, or if it weighs so evenly that you are unable to say that there is a preponderance on either side, then you must decide the question in favor of the defendant. It is only if the evidence favoring the plaintiff's claim outweighs the evidence opposed to it that you can find in favor of plaintiff.

The Court credits the testimony of the Plaintiff and Defendant. Although the Court looked upon the expert with a cautious eye because of his possible bias toward the Plaintiff for having done concrete work for the Plaintiff, the Court found the expert's testimony straight forward, honest and reliable. The Court understands the Plaintiff's complete dissatisfaction with the appearance of the concrete patio, but the Court must decide this case based upon the credible evidence. In that regard, the two-dozen photographs submitted by the Plaintiff could not be dated with any certainty. Thus, the Court could not determine if peeling occurred proximately to completion of the job, or any time in the following 8 years when the concrete had been exposed longer to pool use, chemicals, and seasonal ground expansions. Although described by Plaintiff as an eye-sore, Plaintiff used the pool and patio throughout the passing years. Defendant's description about how he installed the patio was virtually the same as the process described by the Plaintiff's expert who testified afterwards. No competent proof was submitted showing that the concrete mix used by Defendant had the wrong water mixture, or that it was defective in any other way. Regarding breach of contract, the written agreement clearly stated that the "contractor will not be responsible for cracks developing in cement as a result of seasonal ground expansion." If the contractor is not responsible for structural flaws such as a cracks, why would the contractor be liable for nonstructural peeling? There was no testimony that any of the concrete had cracked, or that any of the peeling was structural. The Court did not observe any cracked concrete in the photographs, and much of the discoloring appeared to be that which is common after leaves and other wet materials are left standing on concrete. The expert's testimony further highlighted the obstacles standing in the way of Plaintiff's successful case. First, concrete peeling occurs; the expert testified that peeling occurred on no less than 12 of his jobs. Next, after describing how concrete must be monitored from the truck, the expert could not say whether the Defendant used too much or too little water in pouring the concrete. Next were the [*4]other factors. Pool chemicals, such as chlorine and acid, commonly used in pool care could cause the peeling that the expert observed. Further, the peeling he saw was only near the pool area which tilted the evidence more towards the possibility that the peeling was influenced more from pool use than from Defendant's defective workmanship. Lastly, with all things considered, Plaintiff's expert testified he could not say whether the peeling conditions were caused by the Plaintiff or the Defendant.

Based upon the foregoing, it is hereby

ADJUDGED, that the Plaintiff did not meet his burden of proving his case by a fair preponderance of the credible, relevant and material evidence, and it is further

ORDERED, that the action against Defendant MATTEO DEROSA , the counter-claim against ANTHONY IZZO, and the actions against NICOLIA READY MIX CORP D/B/A

ELM TRANSIT MIX, are hereby dismissed.

This constitutes the decision and order of the Court. Submit judgment.

ENTER

_____________________________________

Judge