§ 777-A — Housing merchant implied warranty

§ 777-a. Housing merchant implied warranty. 1. Notwithstanding the\nprovisions of section two hundred fifty-one of the real property law, a\nhousing merchant implied warranty is implied in the contract or\nagreement for the sale of a new home and shall survive the passing of\ntitle. A housing merchant implied warranty shall mean that:\n a. one year from and after the warranty date the home will be free\nfrom defects due to a failure to have been constructed in a skillful\nmanner;\n b. two years from and after the warranty date the plumbing,\nelectrical, heating, cooling and ventilation systems of the home will be\nfree from defects due to a failure by the builder to have installed such\nsystems in a skillful manner; and\n c. six years from and after the warranty date the home will be free\nfrom material defects.\n 2. Unless the contract or agreement by its terms clearly evidences a\ndifferent intention of the seller, a housing merchant implied warranty\ndoes not extend to:\n a. any defect that does not constitute (i) defective workmanship by\nthe builder or by an agent, employee or subcontractor of the builder,\n(ii) defective materials supplied by the builder or by an agent,\nemployee or subcontractor of the builder, or (iii) defective design\nprovided by a design professional retained exclusively by the builder;\nor\n b. any patent defect which an examination ought in the circumstances\nto have revealed, when the buyer before taking title or accepting\nconstruction as complete has examined the home as fully as the buyer\ndesired, or has refused to examine the home.\n 3. In the case of goods sold incidentally with or included in the sale\nof the new home, such as stoves, refrigerators, freezers, room air\nconditioners, dishwashers, clothes washers and dryers, a housing\nmerchant implied warranty shall mean that such goods shall be free from\ndefects due to failure by the builder or any agent, employee or\nsubcontractor of the builder to have installed such systems in a\nskillful manner. Merchantability, fitness and all other implied\nwarranties with respect to goods shall be governed by part three of\narticle two of the uniform commercial code and other applicable\nstatutes.\n 4. a. Written notice of a warranty claim for breach of a housing\nmerchant implied warranty must be received by the builder prior to the\ncommencement of any action under paragraph b of this subdivision and no\nlater than thirty days after the expiration of the applicable warranty\nperiod, as described in subdivision one of this section. The owner and\noccupant of the home shall afford the builder reasonable opportunity to\ninspect, test and repair the portion of the home to which the warranty\nclaim relates.\n b. An action for damages or other relief caused by the breach of a\nhousing merchant implied warranty may be commenced prior to the\nexpiration of one year after the applicable warranty period, as\ndescribed in subdivision one of this section, or within four years after\nthe warranty date, whichever is later. In addition to the foregoing, if\nthe builder makes repairs in response to a warranty claim under\nparagraph a of this subdivision, an action with respect to such claim\nmay be commenced within one year after the last date on which such\nrepairs are performed. The measure of damages shall be the reasonable\ncost of repair or replacement and property damage to the home\nproximately caused by the breach of warranty, not to exceed the\nreplacement cost of the home exclusive of the value of the land, unless\nthe court finds that, under the circumstances, the diminution in value\nof the home caused by the defect is a more equitable measure of damages.\n c. In addition to any other period for the commencement of an action\npermitted by law, an action for contribution or indemnification may be\ncommenced at any time prior to the expiration of one year after the\nentry of judgment in an action for damages under paragraph b of this\nsubdivision.\n 5. Except as otherwise provided in section seven hundred\nseventy-seven-b of this article, any provision of a contract or\nagreement for the sale of a new home which excludes or modifies a\nhousing merchant implied warranty shall be void as contrary to public\npolicy.\n 6. Except as otherwise provided in section seven hundred\nseventy-seven-b of this article, other implied warranties may arise from\nthe terms of the contract or agreement or from course of dealing or\nusage of trade.\n