In an April 25, 2011 decision by Justice Warshawsky, the Court granted defendant’s motion to dismiss all six claims asserted, thus dismissing the action.   Plaintiffs had contracted with defendant to install a vinyl swimming pool at plaintiffs’ Water Mill home.   Ultimately, the pool was constructed, and plaintiffs complained of various defects. Specifically, plaintiffs complained that the pool depth was too shallow, the dimensions of the “low end” were incorrect, the adjacent spa did not spill over correctly, and chipping of the bricks and concrete.   Unable to resolve the dispute, plaintiffs sued defendant, asserting six causes of action based upon breach of contract, warranty, negligence, “unlicensed contractor”, and attorneys’ fees under General Obligations Law sec. 5-327.

In considering the parties’ cross motions, the Court found that plaintiffs did not establish that defendant did not substantially perform it obligations under the contract. The Court noted, at the outset, that the depth of the pool was never a term contained in the contract itself, and that the other defects complained of “could certainly have been easily remedied.”   As to the unlicensed contractor status, that allegation was contradicted by da copy of the license produced by defendant in response to the motions.

Rush v. Swimming Pools by Jack Anthony, Inc., Sup Ct, Nassau County, April 25, 2011, Warshawsky J, Index No. 003617/2007