Plaintiff filed a small claims complaint against the defendant alleging breach of a contract to repair plaintiff's boat. A trial de novo was conducted on February 10, 2014. Both parties were self-represented at the trial de novo. At the conclusion of the bench trial the court reserved decision.

Based on the credible testimony and evidence presented by the parties the court finds that the plaintiff sustained his burden of proof by a fair preponderance of the evidence. The undisputed testimony at the hearing is that on or about March 23, 2011, plaintiff and defendant entered into a contract to make repairs on plaintiff's boat. Those repairs included removing and replacing two rotted stringers, which are timbers that run the length of the boat that both support the deck and prevent the boat from twisting under the stress of operation. Plaintiff carefully followed and photographed the progress of the work on his vessel, and at some point during the work's progress, defendant advised plaintiff that it was not necessary to replace the full stringers because the fore and aft sections were "rock solid." Relying on defendant's representation, plaintiff agreed to have defendant "sister" the new stringers to the old "rock-solid" sections of the stringers. Upon completion of this revised work plan, plaintiff took possession of the boat in May [*2]2011. By early July 2011 the boat began to leak on the port side. Plaintiff was unsuccessful in his efforts to have defendant resolve the matter with either defendant or defendant's successor in the business.

The parties' original contract included removal and replacement of two entire stringers. Defendant's attempt to modify their contract to partially replace the stringers, notwithstanding plaintiff's apparent acquiescence, was to no avail because the attempt to modify the contract lacked consideration. Although New York law can dispense with the requirement that consideration is necessary to modify an agreement, such modification may not be accomplished by oral agreement and must follow the requirements of General Obligations Law § 5-1103 (Matter of Estate of Crea, 27 NY2d 339 [1971]). Accordingly, defendant was liable to perform under the original terms of the contract, which included replacing the full stringers.

Even if the modification were effective under New York law, defendant cannot escape

liability because he additionally committed the tort of negligent words.

"Liability in [negligent words] cases arises only where there is a duty, if one speaks at all, to give the correct information. And that involves many considerations. There must be knowledge or its equivalent that the information is desired for a serious purpose; that he to whom it is given intends to rely and act upon it; that if false or erroneous he will because of it be injured in person or property. Finally the relationship of the parties, arising out of contract or otherwise, must be such that in morals and good conscience the one has the right to rely upon the other for information, and the other giving the information owes a duty to give it with care." (International Products Co. v. Erie R. Co., 244 NY 331, 338 [1927].)

Under the circumstances as presented in this case, plaintiff clearly established the elements of the tort of negligent words. Moreover, plaintiff certainly was entitled to rely upon defendant's special expertise in his forgoing the full repair to which they originally agreed (Kimmell v Schaefer, 89 NY2d 257 [1996]).

Finally, the court finds that the plaintiff proved by credible evidence that he was damaged in the amount of $1,350.00.

Accordingly, judgment is granted in favor of the plaintiff against the defendant in the sum of $1,350.00 together with interest thereon from August 16, 2013 plus statutory costs and disbursements. The clerk of the court is directed to enter the judgment.

Date:February 28, 2014[*3]J.D.C.

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