Supreme Court, Appellate Term, Second Department, July 12, 2007

APPEARANCES OF COUNSEL

Keith DiPrima appellant pro se. Jennifer DiPrima, appellant pro se.

Memorandum.

Judgment affirmed without costs.

{**16 Misc 3d at 94}Plaintiffs commenced the instant small claims action to recover damages for breach of contract. Plaintiffs alleged that prior to purchasing defendants' home, they noticed a hole in the living room ceiling and water damage surrounding same. As a result, they added a provision to the contract of sale requiring defendants to fix the leak in the roof and any damage caused thereby prior to closing. At trial, plaintiffs testified that on the day of the walk-through, prior to the closing, there were no leaks and the hole had been patched. However, two days after the closing, the hole reopened and water had leaked onto the living room floor. Defendant John Della Croce testified that four days prior to the closing he had the leak repaired and the hole patched, and he submitted a paid bill into evidence indicating same.

Generally, where title to property has closed and the deed has been delivered, "any claims the plaintiff might have had arising from the contract of sale were extinguished by the doctrine of merger unless there was a clear intent evidenced by the parties that a particular provision of the contract of sale [would] survive the delivery of the deed" (Ka Foon Lo v Curis, 29 AD3d 525, 526 [2006] [internal quotation marks and citations omitted]). The court properly found that the parties did not intend the contract provision regarding the repair to the roof leak to survive delivery of the deed (id.). Since the evidence at trial established that prior to the closing the leak had been repaired, the lower court's judgment in favor of defendants dismissing the action rendered substantial justice between the parties in accordance with the rules and principles [*2]of substantive law (see UDCA 1807).

Tanenbaum, J. (dissenting and voting to reverse the judgment and order a new trial in the following memorandum). In my opinion, substantial justice was not done according to the rules and principles of substantive law (see UDCA 1807; Moser v Spizzirro, 31 AD2d 537 [1968], affd 25 NY2d 941 [1969]; Perin v Mardine Realty Co., 5 AD2d 685 [1957], affd 6 NY2d 920 [1959]). Accordingly, I would reverse the judgment and remand the matter to the court below for a new trial.

Rudolph, P.J., and McCabe, J., concur; Tanenbaum, J., dissents in a separate memorandum.