Shane Lyon filed this claim on September 23, 2022, seeking $5,000 from Conner Claus because the defendant was "[h]ired and paid to install a dug well and did not meet specs or complete job". The matter proceeded to trial on October 27, 2022.

It is clear from the testimony that the parties agreed for the Claimant to pay the Defendant $6,500 to dig a 13 foot well. It is also undisputed that the Defendant made two attempts to place a plastic 11 ½ foot cylinder in the ground which kept filling up with mud. The second attempt included surrounding the cylinder with loose stone and covering the bottom with fabric. The Defendant also testified that the cylinder rested on two feet of stone.

The Claimant subsequently hired BP Excavation LLC (hereinafter "BP") to finish the job for $6,500. The Claimant testified that BP installed a completely sheathed cylinder at the correct contracted depth of 13 feet which apparently produced clear water. Claimant did not call anyone from BP or any other contractor to give expert testimony. The Claimant could not answer this Court's inquiry whether there existed any building codes or industry standards that were breached by the Defendant or how those supposed violations resulted in the well failing to produce clear water.

The court's duty in a small claims case is to do substantial justice between the parties according to the rules of substantive law (UCCA § 1804). Generally, a homeowner will be entitled to return of the contract price if he can prove that the contractor did not substantially perform the work or that the work was performed negligently. "Common law negligence has been well established from the Kings Bench as: duty owed, duty breached, proximate causation to injury or damage. Ordinarily In the first instance, it is plaintiff's burden to prove by a preponderance of admissible evidence its prima facie case of negligence against defendant, thereby shifting burden to defendant to rebut liability in negligence by its preponderance of admissible evidence" (Phoenix Sutton Str Inc v Rizzotti, 71 Misc 3d 1207(A), [NY Civ Ct, Kings County 2021]; see also Mortensen v Memorial Hospital, 105 AD2d 151 [1st Dept, 1984]).[*2]

New York recognizes that there is an implied promise to perform a contract in a skillful and workmanlike manner (NY Jur 2d, Contracts § 354 citing Bialo v Walter Lawlor, Inc., 160 AD2d 559; Mohawk v Overall Co. v Brown, 163 AD2d 157; and Fairbairn Lumber Corp. v Telian, 92 AD2d 683). As such, in order to recover for negligent performance of the contract, the Claimant must prove that the Defendant did not use reasonable care and competence owed generally by those who dig wells.

Whether a professional has met the requisite standard of care is generally established by opinion testimony from other professionals (see 5 Bruner & O'Connor Construction Law § 17:14). It is not the duty of this Court to insert itself as a litigant to search the building codes for a legal basis for the claim, to fill the holes in the testimony with respect to the standard of care of dug wells, to show how the defendant has breached that standard, or to fill the gaps in the testimony about how that breach of a standard of care proximately caused the Claimant's injury.

Title 10 of the Rules and Regulations of the State of New York Appendix 5-B discusses the requirements for both dug and drilled wells which provides in subsection (b) (4): "A well shall have a minimum casing length extending from one foot above finished grade to nineteen feet below finished grade upon completion of well drilling, with the following exceptions:

(i) The required total length of casing may exceed twenty feet depending upon geologic conditions and shall be in accord with the standards for the construction of wells listed in Table 2; and

(ii) Where the only viable source of groundwater available is from a shallow aquifer where the well must be completed at a depth less than nineteen feet below grade, the Department or local health department having jurisdiction may allow use of well casing of less than twenty feet total length along with such additional measures as needed, including but not limited to increased separation distances per Table 1, Note 1, to ensure provision of potable water."

It is clear from the testimony that the Claimant who was intimately involved in the process of choosing the depth and materials used did not contract for a dug well that complied with the relevant building codes. Rather, the Claimant contracted for a well that was approximately two thirds of the depth required by the codes. Notably absent from the testimony is any indication that the appropriate approvals were obtained for a well that was shallower than normally required or that such a shallow well would be "the only viable source of groundwater."

Subsection (b) (19) provides: "Wells completed in unconsolidated material or at the unconsolidated-consolidated material interface shall be screened if necessary and sufficiently developed to produce sand-free water and to minimize the entrance of fine materials into the well." Assuming for the sake of argument that the Claimant's land contained primarily unconsolidated material, notably absent is any codified requirement to sheath the entire well casing in such a circumstance.

It is clear as mud from the testimony whether BP would have initially dug the well any differently than the Defendant did on the first two attempts. It should also be noted that there could be no guarantee that a 13-foot dug well could possibly produce clear water. Had BP failed to produce clear water at 13 feet, it seems that they would also be listed as a defendant even though they would have delivered exactly what they were hired to do. It should also be noted that the dug well in question has weathered neither an upstate winter nor an extreme drought which begs the question of whether BP will soon be listed as a defendant either when the temperatures drop well below freezing or if we experience a dry summer next year. Had obtaining clear water been the critical component of the contract, the maximum depth would be [*3]listed as the point beyond which further attempts would be halted. There certainly could be no guarantee that clear water could be obtained at any depth. The only guarantee could be that the Defendant would dig to a particular depth in an attempt to obtain clear water. This Court finds "that to meet his burden of proof plaintiff should have produced an expert to establish defective construction" (Trentacosti v Materesa, 67 AD2d 1025 [3rd Dept 1979]). In the absence of such testimony, the Claimant has failed to sufficiently prove his claim and judgment should be for the Defendant.

Therefore, it is hereby ordered that the claim should be and hereby is DISMISSED.

This constitutes the decision and order of the court.