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Decided on July 5, 2006
Nassau Dist Ct

NSC 467/05
Representation: Charles Dennis Zyburo, plaintiff pro se, 7 Monterey Lane, Yaphank, New York 11908, 631-205-0882, 239-514-1078, Bristled Five Corporation Development:Pinewood Manor, by Malcolm Koubel, pro se, One Crabapple Court, Huntington Station, New York.
Scott Fairgrieve, J.
Plaintiff homeowner sues for damages arising out of alleged defective craftsmanship on a model home purchased from defendant based on a breach of contract claim.
Plaintiff Zyburo rented and purchased a model home, 7 Monterey Lane in Yaphank, NY, from defendant Bristled Five Corporation, d/b/a Pinewood Manor under an "as is" agreement. Plaintiff submitted a form contract of sale dated July 13, 2000, which was modified to reflect the actual date of September 8, 2000.
The September 8, 2000 purchase agreement contained the following warranty: 2
9. WARRANTY: The Housing Merchant Implied Warranty of NYS General Business Law, will apply to this agreement. The seller makes no other warranties, express or implied, in connection with this agreement or the home, and all such other warranties are excluded.
Subsequently, the parties modified the September 8, 2000 agreement by the agreement dated December 11, 2000 which provided the following: 1
. The purchaser will enter into possession on the 2nd day of December, 2000.
2.
That in permitting the Purchasers to move into said premises before closing of title, the Purchasers are moving in as squatters and trespassers under no claim of title or ownership by and between the Sellers and Purchasers by the Purchaser's taking such possession.

3.
Notwithstanding the Contract or Option provisions, Purchasers have inspected the premises and [*2]agree to accept the same "as is" as of the date of taking possession. Their taking possession will constitute a waiver of any objections to the physical condition of the premises. Any subsequent repairs which are necessary, including any to the plumbing, heating and electrical systems and appliances, but not limited to these items, will be taken care of by Purchasers at their own cost.


Thus the new agreement attempted to repudiate the new home owner warranty protections with an "as is" clause with no warranties.
Plaintiff arranged to rent the property under the December 11, 2000 agreement because they could not, at the time of contract, afford to close. Plaintiff submitted various punch lists to defendant, which included the cracks on the porch. Plaintiff closed on the home and subsequently received the deed on July 2, 2001, after renting the home from defendant for approximately eight months.
Plaintiff commenced the instant small claims action against Bristled Five Corporation alleging that they did not repair hairline cracks in the porch foundation of their "new home" as per their submitted punch lists. Defendant defers to the "as is" contract and asserts that, although they completed some work listed on some punch lists, it was done as a favor, not mandated by the contract, and was not done on a "new home." Moreover, defendant claims that the hairline cracks in the porch foundation are within code as they are normal settling cracks and less than one quarter inch in width.
As per Article 36-B of the General Business Law

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