In this small claims breach of contract action Plaintiff seeks to recover the sum of $2,500.00 of the $10,000.00 she paid for the purchase and installation of a replacement central air conditioning unit, using existing duct work. A bench trial of the action was held on April 27, 2011. Vicky Gatell ("Plaintiff") testified on her own behalf and William Ewashkow, District General Manager of Sears Home Improvement testified on behalf of Defendant, Sears Home Improvement Products ("Defendant").

On June 25, 2010, Plaintiff signed a contract with Sears Home Improvement Products, Inc. for the replacement of a central air conditioning unit for her home. The contract reads, in pertinent part, "Description of the Project and Description of the Significant Materials and Equipment to be Handled". Directly underneath, the contract further lists in capital, bold letters "SYSTEM INFORMATION: Equipment Brand: Carrier; SEER, (up to)16; Cooling BTU: 48,000. The next category, listed in bold capital letters states: "EQUIPMENT SPECIFICATIONS: Furnace/Fan Coil Model No. FXCNF060000; Condenser Unit Model # [*2]24ACC648A003; and Thermostat Model # TB-PAC. The contract price set forth is $10,000.00 which the Plaintiff fully paid in advance. Pursuant to arrangements made by Plaintiff, the unit was installed on July 9, 2010 in the presence of Plaintiff's husband who signed off the Sears separate "Certificate of Completion" form indicating that the installation was satisfactorily completed. Although the unit stopped working the next day, Sears promptly returned and addressed the mechanical issues. There were no further performance problems with the installed equipment.

Plaintiff contends that Sears materially breached the contract by installing a Carrier unit having a different model number. Plaintiff points to the fan coil model number which was actually installed: FX4DNB061 which she claims was less efficient, with a 14.5 SEER (Seasonal Energy Efficiency Rating) instead of the 16.0 stipulated in the contract of sale.

In response to Plaintiff's phone calls, Defendant's representatives met with Plaintiff. Defendant also provided Plaintiff with the "AHRI (Air-Conditioning, Heating and Refrigeration Institute) Certificate of Product Ratings", setting forth the performance of the split system, air-

cooled condensing unit with a blower showing 45,500 BTU and a SEER of 16, as well as a separate Carrier "Manufacturer Certification Statement", setting forth a SEER of 16. Both certifications are designed to be used as evidence of eligibility for a Federal Energy Tax Credit.

Defendant offered the testimony of Sears District Manager, William Ewashkow, who testified that the fan coil installed, although not the same model number as set forth in the contract, was, in fact an upgrade to the specification in the written contract. He further testified that had Plaintiff originally contracted for the upgraded model actually installed, she would have been required to pay an additional $367.00. His testimony further demonstrated that the unit as installed achieves a SEER of 16 and the two units - both the fan coil and condenser taken together - achieve a maximum of 48,000 BTU and minimum 16 SEER, which is what the Plaintiff contracted. Defendant placed into evidence the "AHRI (Air-Conditioning, Heating and Refrigeration Institute) Certificate of Product Ratings", listing the 16 SEER and 46,500 BTU, which is the standard necessary to qualify for a Federal Energy Efficiency Tax Credit. (Defendant's Exhibit D). The Defendant further testified that the AHRI is a respected independent agency that regulates energy efficiency ratings for heating and cooling equipment and explained that the AHRI listing of 46,500 BTU on the unit certificate was theaverage performance but not the maximum, which is 48,000, as specified in the contract.The Plaintiff offered no technical evidence to rebut the testimony of the Defendant. She based her claim that the installed unit was less efficient solely on her examination of the energy efficiency sticker affixed to the condenser unit - one of the items of equipment installed. Her testimony clearly indicated that she failed to examine the information listed on the fan coil unit which was installed in the attic. Likewise, she did not offer any evidence to rebut the energy certification listed on the AHRI or the manufacturer's certification or the testimony relative to the operation of the unit, as a split system, consisting of multiple components.

With respect to damages, Plaintiff testified that the $2,500.00 she sought represented the difference in price between the unit as set forth in the contract and the allegedly less efficient unit actually installed. Finally, Plaintiff contends that Defendant was not authorized to rely upon Plaintiff's husband, who signed the "Certificate of Completion", indicating his approval of the installation job. Plaintiff cites the language in the contract that, "there are no oral agreements [*3]between Sears and me. Everything I expect Sears to do has been included in this contract. Nothing can be changed in this contract unless it is in writing on a separate form accepted by me and Sears".

Finally, we find no merit in Plaintiff's claim that her husband, who does not own the home, lacked authority to approve the installation job and that the Defendant had no right to rely upon her husband's signature on the "Certificate of Completion". Although the original contract

contained language referenced above which required that any changes to the contract be in writing, NY General Business Law, art 36-A defines a number of terms pertaining to the regulation of home improvement contracts. The term "Owner" "generally means any homeowner, cooperative shareholder owner, or residential tenant or any person who purchases a custom home". (NY General Business Law, *770[2]). With respect to an owner's right to cancel a home improvement contract, the term "owner", "means an owner or any representative of an owner". (General Business Law *771[h]). Plaintiff testified that her husband, by virtue of not owning the home, lacked authority to sign. She did not testify that her husband lived other than at the premises where the equipment was installed.

Plaintiff's testimony clearly indicated that Plaintiff contracted for the installation; Plaintiff alone made all advance arrangements with Defendant regarding the date and time of installation. Plaintiff absented herself and asked her husband to be present because Plaintiff found it inconvenient to be at home on the date and time she had arranged. Sears plainly relied on the apparent authority of the Plaintiff's husband whom Plaintiff directly placed in the position of apparent authority to supervise the installation. "Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction. The agent cannot by his own acts imbue himself with apparent authority." (ER Holdings, LLC, etc v. 122 W.P.R. Corp., 65 AD3d 1275 [2d Dept 2009], quoting Hallock v. State of New York, 64 NY2d 224, 231 [1984]). We find that Plaintiff is estopped from claiming her husband lacked authority to sign off on the installation job when, by her actions she clearly placed him in a position of apparent authority.Based on the foregoing, the Court dismisses the claim.

This constitutes the Decision and Order of the Court.

Dated: May 25, 2011

New Rochelle, New York

Hon. Susan I. Kettner

City Court Judge