Holding Court: Paving the Way to Justice

What topics do you want addressed by Judge Latwin? Tell us.

By Joe Latwin

Recently a Mount Vernon homeowner filed a small claims case against a New Rochelle contractor for $1,528.09. The claim was "Prior to driveway work, catch basin drained properly through PVC pipe to drywell. Following repaving, water backed up; video inspection showed the PVC pipe filled with rocks.

After a conference failed to resolve the case, it was set down for trial. The trial was recently held. At the trial the homeowner represented herself. The contractor was represented by an attorney. The plaintiff made an opening statement summarizing the basis for her claim. The defendant's attorney gave an opening statement summarizing his evidence, including before and after pictures and asserted there was no proof that the defendant damaged the PVC pipe.

The plaintiff was sworn and testified about the property. She had known about the condition of the driveway for over 50 years and no work had been done on it except for putting on new blacktop over the concrete base. Plaintiff introduced the contract between her and the defendant. She said after the defendant did the work in the driveway in 2022, the drain pipe filled with water. She hired a plumber to snake out the pipe – it was blocked. A sewer company was then employed to do a video inspection of the pipe. The video showed rocks in the pipe.

Plaintiff introduced the contract between the parties, her checks to the plumber and sewer inspection company, her check that paid for repairs, the estimates of the repairs, photographs of the concrete foundation, a video of the sewer, and a video of the taking of the video of the pipe.

On cross examination, the plaintiff said she had been in the house since 1972 and the blacktop had been redone in the late 1990s, but nothing else had been done to the driveway. They saw ponding on the driveway that was caused by drainage problems from the roof. She walked the driveway with the defendant and noted cracks in the driveway. The driveway had sunk near the chimney and pipes from the leaders had become clogged. The pipe that was broken was 11 inches below the surface.

Plaintiff rested her case and the defendant's attorney made a motion to dismiss the claim since the plaintiff had no proved causation. The Judge denied the motion subject to it being later remade.

The defendant testified that the driveway was in some sections sunk between 10 and 12 inches and there were cracks. Based on defendant's many years in the business he said he believed the driveway had sunk due to water getting under the pavement eroding the earth under the pavement causing the concrete to sink. He said the pipe was intact when he did the work and was functioning when he tested it after the work was completed. He said his work on the driveway would have affected down only four inches from the surface and not reached the pipe 11 inches below the surface.

The parties gave their respective summations. No decision has been rendered yet.

Among the things I expect to come into play are the burden of proof, the standards for negligence, and perhaps res ipsa loquitor (the principle that the occurrence of an accident implies negligence). Who would you rule for and why? In future columns I will disclose the outcome and its reasoning.

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