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Using an Unpublished Contractor Decision by Judge and Finite Details of General Business Law, Adam Leitman Bailey, P.C. Prevails at Trial

The client, a Westchester County homeowner, was sued for a full repaving of a home driveway pursuant to a written contract. The work was done in what the plaintiff contractor asserted was a workmanlike manner; the client was dissatisfied because of defective installation work and collateral damage to the property. Adam Leitman Bailey, P.C. did not draft the pleadings and was substituted in as counsel only a few months pre-trial. Adam Leitman Bailey, P.C. prepared a two-pronged defense, based legally on failure to comply with statutory requirements and factually on poor workmanship.

At trial, the first witness was the contractor. On cross-examination, Adam Leitman Bailey, P.C. brought out that the contractor was duly licensed as a home improvement contractor, but that his written contract and bill failed to include matters required under the general business law, including the contractor’s license number, a statement of when the work would start and be substantially done and the consumer’s right to revoke the contract within three business days. Neither the witness nor the opposing counsel appeared to understand the legal consequences of the witness’s answers.

Adam Leitman Bailey, P.C.’s legal research had revealed that the judge before whom the firm was to appear had unpublished decisions and a bar journal article which supported the firm’s position that a failure to include those terms required dismissal. At the conclusion of the witness’s testimony Adam Leitman Bailey, P.C. moved orally to dismiss and at the court’s direction thereafter submitted a written motion. In a written decision, the judge held the language of the general business law to be mandatory and enacted for the benefit of homeowners as a class. The complaint was dismissed. Since the defects in the plaintiff contractor’s contract could not be retroactively fixed, Adam Leitman Bailey, P.C. never reached a trial on the merits of the claim and the contractor was foreclosed from collecting on his contract.

Adam Leitman Bailey, P.C. was represented by partner Colin E. Kaufman.

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