Bauman v. Eagle Chase Associates

In an action to recover damages for breach of contract and negligence, the defendant International Carpet Showcase, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (DeMaro, J.), dated September 7, 1994, as denied that branch of its motion which was for summary judgment dismissing the cause of action to recover damages for breach of contract insofar as it is asserted against it. [489] Ordered that the order is affirmed insofar as appealed from, with costs. The Supreme Court properly concluded that the subject contract, which was for the installation of marble floors in the plaintiffs’ condominium, fell within the ambit of CPLR 4544 as one involving a "consumer transaction” wherein the service performed is primarily for household purposes (CPLR 4544; Matter of Filippazzo v Garden State Brickface Co., 120 AD2d 663; cf., Drelich v Kenlyn Homes, 86 AD2d 648). The court also properly concluded that the "Terms and Conditions” in the subject contract are not admissible into evidence against the plaintiffs at trial since they are printed in a type size that fails to satisfy the type size requirement set forth in CPLR 4544. The appellant’s remaining contentions are either unpreserved for appellate review or without merit. Mangano, P. J., Thompson, Florio and McGinity, JJ., concur.