Legal Question in Real Estate Law in New York

I recently bought a home, we noticed the front porch was leaking and told the home owner it needed to be fixed. The inspector also noted it on his report and we listed it in the contract. The home owner did make an attempt to fix it. We closed and two weeks after closing it snowed and as the snow was melting the leak began and even worse it started leaking in the home. The roof only leaks when it snows. We had the roofer who fixed the problem come and look at it. He said he told the previous home owner that the fix might not work. He called the home owner to tell him it would cost 5200 to fix and we have not heard anything back. My closing attorney says we can sue in small claims court, however he lives upstate and we live in nassau county. I would need to sue him in his county and small claims only covers 5,000. I spoke to a friend who said to make a claim against my homeowners policy and that they will sue him but I don't believe the leak is a covered loss. He said we might be able to sue him in district court. He said we may or may not have a chance and indicated that he contract was nulified by the deed. Please advise if this is correct and what my options are at this point. I don't believe the previous home owners should get away with this. Last note apparently my attorney is not a litigator therefore, he can't represent me in court.


Asked on 1/23/10, 2:21 pm

1 Answer from Attorneys
Michael Markowitz Michael A. Markowitz, PC

If the seller's obligation to fix the leak is in the contract, and the seller failed to fix the leak, you may be able to hold the seller responsible. However, many real estate contracts have language stating that all obligations terminate at closing. If the seller told you that he performed under the contract and you relied on his representation, you may be able to receive restitution despite the language in the contract.

I agree with the advice to sue the seller in Small Claims Court. If the seller moved upstate, you would have to sue in the Village Court where the seller lives. You may also have jurisdiction in Nassau District Court, however, you certainly do not have jurisdiction in Small Claims Court in Nassau County.

Therefore, I would contact (telephone) the Village Court where the seller lives and ask for the Court to mail you the small claims form. You should be able to complete the form - and have it notarized - in Nassau County and submit the form (by mail) to the upstate Village Court. You would then receive a Court date where you would have to drive and appear. Sometimes, just receiving a summons is enough to push an individual to make restitution. If not, when you litigate make sure that you have either a paid receipt or two estimates to repair the damage.

Mike.

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Answered on 1/29/10, 5:54 am


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