Netti v. LeFroisNetti v. LeFrois
—Appeal from an order of Supreme Court, Cayuga County (Corning, J.), entered Jаnuary 22, 2002, which, inter alia, denied in part defendants’ motion seeking, inter alia, summаry judgment.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting those parts of the mоtion seeking dismissal of that portion of the complaint seeking recovery under the guarantee in the agreement and limiting damages to the sum of $250 based on the terms of the agreement and as modified the order is affirmed withоut costs.
Memorandum: Plaintiff entered into an agreement with defendant Housemaster Home Inspection Service (Housemaster) pursuant to which Hоusemaster was to prepare a home inspection repоrt for a property that plaintiff was interested in purchasing. After receiving the report, plaintiff purchased the property but shortly thereafter learned of problems with the roof of the home. Housemaster refused to compensate plaintiff for the cost of repairs to the roof, and plaintiff commenced this action against Housemaster and dеfendant Robert LeFrois, who performed the inspection. Defendants moved, inter alia, for summary judgment seeking dismissal of that portion of the complaint seeking recovery under the guarantee in the agreement and рartial summary judgment limiting damages to the sum of $250 based on the terms of the agreement. In addition, defendants sought dismissal of the ¿action against LeFrois and an аward of attorney’s fees and costs incurred in defending the action, pursuаnt to the terms of the agreement. Supreme Court dismissed the action against LeFrois and otherwise denied the motion.
The court erred in determining that there is an issue of fact whether the agreement was modified by alleged “oral representations” of LeFrois and thus that there is an issue of fact whether the guarantee in the agreement applies. The guarantee limits the potential exposure of Housemaster to 90 days on any item rated “Satisfactory.” Housemaster established that the guarantee doеs not apply to the roof inasmuch as the roof was rated “Fair.” Furthermore, the agreement expressly provides that “[n]o oral statement mаde by the Inspector or any other Company representative shall expand the scope or change the terms of this agreement or the Inspection Report,” and thus Housemaster established that plaintiff is рrecluded from asserting that the agreement was orally modified (see General Obligations Law § 15-301 [1]; Fleet Bank v Pine Knoll Corp.,
Finally, Housemaster contends that it is entitled to the attorney’s fees and costs incurred in defending the action based on the express provision in the agreement providing fоr such attorney’s fees and costs in the event that plaintiff does not fully prevail in an action commenced by him. Housemaster’s request for that reliеf is premature, in view of the fact that plaintiffs ultimate right to recover in this action has not yet been determined.
We therefore modify the order by granting those parts of the motion seeking dismissal of that portion of the cоmplaint seeking recovery under the guarantee in the agreement and limiting damages to the sum of $250 based on the terms of the agreement. Present — Green, J.P., Hurlbutt, Burns, Gorski and Hayes, JJ.