ยง 777-a. Housing merchant implied warranty. 1. Notwithstanding the
provisions of section two hundred fifty-one of the real property law, a
housing merchant implied warranty is implied in the contract or
agreement for the sale of a new home and shall survive the passing of
title. A housing merchant implied warranty shall mean that:
a. one year from and after the warranty date the home will be free
from defects due to a failure to have been constructed in a skillful
manner;
b. two years from and after the warranty date the plumbing,
electrical, heating, cooling and ventilation systems of the home will be
free from defects due to a failure by the builder to have installed such
systems in a skillful manner; and
c. six years from and after the warranty date the home will be free
from material defects.
2. Unless the contract or agreement by its terms clearly evidences a
different intention of the seller, a housing merchant implied warranty
does not extend to:
a. any defect that does not constitute (i) defective workmanship by
the builder or by an agent, employee or subcontractor of the builder,
(ii) defective materials supplied by the builder or by an agent,
employee or subcontractor of the builder, or (iii) defective design
provided by a design professional retained exclusively by the builder;
or
b. any patent defect which an examination ought in the circumstances
to have revealed, when the buyer before taking title or accepting
construction as complete has examined the home as fully as the buyer
desired, or has refused to examine the home.
3. In the case of goods sold incidentally with or included in the sale
of the new home, such as stoves, refrigerators, freezers, room air
conditioners, dishwashers, clothes washers and dryers, a housing
merchant implied warranty shall mean that such goods shall be free from
defects due to failure by the builder or any agent, employee or
subcontractor of the builder to have installed such systems in a
skillful manner. Merchantability, fitness and all other implied
warranties with respect to goods shall be governed by part three of
article two of the uniform commercial code and other applicable
statutes.
4. a. Written notice of a warranty claim for breach of a housing
merchant implied warranty must be received by the builder prior to the
commencement of any action under paragraph b of this subdivision and no
later than thirty days after the expiration of the applicable warranty
period, as described in subdivision one of this section. The owner and
occupant of the home shall afford the builder reasonable opportunity to
inspect, test and repair the portion of the home to which the warranty
claim relates.
b. An action for damages or other relief caused by the breach of a
housing merchant implied warranty may be commenced prior to the
expiration of one year after the applicable warranty period, as
described in subdivision one of this section, or within four years after
the warranty date, whichever is later. In addition to the foregoing, if
the builder makes repairs in response to a warranty claim under
paragraph a of this subdivision, an action with respect to such claim
may be commenced within one year after the last date on which such
repairs are performed. The measure of damages shall be the reasonable
cost of repair or replacement and property damage to the home
proximately caused by the breach of warranty, not to exceed the
replacement cost of the home exclusive of the value of the land, unless
the court finds that, under the circumstances, the diminution in value
of the home caused by the defect is a more equitable measure of damages.
c. In addition to any other period for the commencement of an action
permitted by law, an action for contribution or indemnification may be
commenced at any time prior to the expiration of one year after the
entry of judgment in an action for damages under paragraph b of this
subdivision.
5. Except as otherwise provided in section seven hundred
seventy-seven-b of this article, any provision of a contract or
agreement for the sale of a new home which excludes or modifies a
housing merchant implied warranty shall be void as contrary to public
policy.
6. Except as otherwise provided in section seven hundred
seventy-seven-b of this article, other implied warranties may arise from
the terms of the contract or agreement or from course of dealing or
usage of trade.