Caceci v. Di Canio Construction Corp.

526 N.E.2d 266 (1988)

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Nature of the Case

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Facts

Ps entered into a contract with D for the sale and conveyance of a parcel of land in Suffolk County on which a one-family ranch home was to be constructed by D. The contract price was $55,000. D guaranteed 'for one year from title closing, the plumbing, heating, and electrical work, roof and basement walls against seepage and defective workmanship,' but added that '[liability] under this guarantee shall be limited to replacement or repair of any defects or defective parts.' The contract also called for quality of work in accordance with the community standards. Title closed in 1977. Four years later in December 1981, P noticed a dip in the kitchen floor. The condition was brought to D's attention, and an attempt to repair the house was made by jacking up the basement ceiling and inserting shims to close the gap. The floor soon began to dip again. D made another attempt to repair the house while assuring P that the cracks and dips were the result of a normal settling process. P hired a firm experienced in structural and concrete repairs to do test borings and analysis of soil samples. It was discovered that the foundation was on top of soil composed of deteriorating tree trunks, wood and other biodegradable materials. The repair work to cure the problem, which took seven months, included digging up the entire slab foundation, removing the wood and tree trunks, and pouring a new foundation. P then sued D and won a judgment of $57,466 under negligence and implied warranty theories. D appealed. The Appellate Division affirmed solely on the implied warranty theory in that there was sufficient evidence that the trier of fact could infer that D knew the house was being erected on poor soil.