| Finsel v Wachala |
| 2010 NY Slip Op 09315 [79 AD3d 1402] |
| December 16, 2010 |
| Appellate Division, Third Department |
| Barry A. Finsel, Also Known as B. Alex Finsel, Appellant, v Joyce C.Wachala et al., Defendants, and Capital Home Services, LLC,Respondent. |
—[*1] Pattison, Sampson, Ginsberg & Griffin, P.C., Troy (Michael W. Shanley of counsel), forrespondent.
Kavanagh, J. Appeal from that part of an order of the Supreme Court (Reilly Jr., J.), enteredAugust 19, 2009 in Schenectady County, which granted a motion by defendant Capital HomeServices, LLC for summary judgment dismissing the complaint against it.
Plaintiff hired defendant Capital Home Services, LLC (hereinafter defendant) to perform aninspection on a building that he was purchasing in Schenectady County. On June 25, 2006, MarkusSnedaker, an inspector employed by defendant, arrived at the property and performed the inspectionwhile accompanied by plaintiff. After the inspection was completed, plaintiff signed a written inspectionagreement prepared by Snedaker, which set forth the scope of the inspection and, by its terms, limiteddefendant's liability for the services it provided. Later that day, Snedaker gave plaintiff a report basedon the inspection which identified, among other things, a "potential major" issue with the building'sheating system and recommended that it be evaluated by a heating specialist. Snedaker's report alsoconcluded that the furnace was not [*2]operational and that ductworkin the building appeared to be incomplete. He also noted in the report that a significant amount ofcondensation was present in the building's basement.
Plaintiff did not consult with a heating specialist prior to purchasing the building, and only after hetook title did he realize that the building's heating system was not operational. Plaintiff subsequentlycommenced this action against, among others, defendant[FN1]alleging that Snedaker was grossly negligent for failing to determine that the building, as constructed, didnot comply with existing codes and ordinances and in the way he performed the inspection. Defendantmoved for, among other things, summary judgment dismissing the complaint. Supreme Court granteddefendant's motion, and plaintiff now appeals.[FN2]
The inspection agreement signed by plaintiff specifically stated that the inspector did not "testheating or cooling distribution of ducts" and only evaluated mechanical systems in the building in light oftheir "operating performance on the day of inspection." Moreover, it provided that the inspection wasnot performed to determine whether the building was in compliance with existing codes or regulationsand limited defendant's liability to the fee paid by plaintiff for the inspection.[FN3]
Plaintiff, while he acknowledges reading and signing the agreement, argues that he should not bebound by it because it was unconscionable and constituted a contract of adhesion. In support of thiscontention, he points to the fact that the agreement was only presented to him after the inspection hadbeen completed and at a time when he claims not to have been in a position to refuse to sign it.However, the record established that, prior to the inspection, plaintiff had access to a list of firms thatperform such inspections and was under no obligation to retain defendant for this service. He admitsaccompanying Snedaker during the inspection, actively participating in it and signing the agreement onlyafter he had read it. Plaintiff suggests that, had he known that defendant would ask him to sign anagreement that placed such severe limitations on its potential liability, he would have retained anotherfirm to perform the inspection. However, this option—hiring someone else to inspect theproperty—remained available to plaintiff after the inspection had been completed and, moreimportantly, before he signed the agreement. Moreover, there is no evidence in the record to supportplaintiff's[*3]"contentions that [Snedaker] used high pressure tactics,deceptive language or unequal bargaining power" to get plaintiff to retain his firm or sign this agreement(Berger-Vespa v Rondack Bldg. Inspectors, 293 AD2d 838, 841 [2002]; see 22 NYJur 2d, Contracts § 145). As such, we cannot conclude that this agreement was a contract ofadhesion and, therefore, unenforceable (seeClement v Delaney Realty Corp., 45 AD3d 519, 520-521 [2007]).
Next, we turn to plaintiff's claim that Supreme Court erred in finding that defendant was not grosslynegligent in the manner in which it performed this inspection and should have denied its motion forsummary judgment. " '[G]ross negligence' differs in kind, not only degree, from claims of ordinarynegligence. It is conduct that evinces a reckless disregard for the rights of others or 'smacks' ofintentional wrongdoing" (Colnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d 821,823-824 [1993], quoting Sommer v Federal Signal Corp., 79 NY2d 540, 554 [1992]).Plaintiff alleges that Snedaker was guilty of gross negligence in failing to detect that the building's "heatdelivery system was a hoax" and showed a callous disregard for his property rights by failing to fulfill apromise he made to take another look at the building's heating system. However, this claim simplycannot be reconciled with what is plainly set forth in the inspection report regarding the problems thatmight exist with the building's heating system and the limited nature of the inspection that defendantconducted. Furthermore, there is no evidence in the record to support plaintiff's contention thatSnedaker agreed to return to the building to perform another inspection on the heating system. On thesefacts, we agree with Supreme Court that defendant established as a matter of law that Snedaker wasnot grossly negligent (see Smith-Hoy v AMCProp. Evaluations, Inc., 52 AD3d 809, 811 [2008]; Mancuso v Rubin, 52 AD3d 580, 583 [2008]; Schietinger v Tauscher Cronacher ProfessionalEngrs., P.C., 40 AD3d 954, 956 [2007]; see also Rector v Calamus Group, Inc., 17 AD3d 960, 961-962[2005]), and its motion for summary judgment dismissing the complaint was properly granted.
Mercure, J.P., Malone Jr., Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: Plaintiff also sued the seller as wellas the real estate agency that brokered the sale.
Footnote 2: While defendant made this motionfor summary judgment before issue was joined, plaintiff failed to make a timely objection on the groundthat it was premature (see CPLR 3212 [a]; Erie Ins. Group v National Grange Mut. Ins. Co., 63 AD3d 1412, 1414n 2 [2009]; see also Roche v ClaverackCoop. Ins. Co., 59 AD3d 914, 916 [2009]) and he cannot make this argument for the firsttime on appeal (see Avraham v Allied RealtyCorp., 8 AD3d 1079 [2004]).
Footnote 3: The agreement also stated that theparties would submit any dispute to binding arbitration. However, the parties waived this provision andagreed to litigate this matter in Supreme Court.