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Malul v. Capital Cabinets3/22/2002
This opinion is uncorrected and subject to revision before publication in the Miscellaneous Reports.
(*1)
DECISION AFTER TRIAL
Shalom Malul contracted with Capital Cabinets, Inc. for new kitchen cabinets. Dissatisfied with the purchase, Mr. Malul has sued Capital and two individuals associated with Capital, David Hershkowitz and Hona Hershkowitz. At the January 15, 2002 trial, Mr. Malul appeared and testified. Capital and the individual defendants were represented by Sol Mermelstein, Esq. Sidney Friedman and Patrick Gangitano testified on behalf of (*2)the defendants.
At the conclusion of Plaintiff's case, Defendants David Hershkowitz and Hona Hershkowitz moved for dismissal. The Court granted the motion, seeing no basis in Plaintiff's evidence for any liability of the individual defendants.
In a writing dated August 11, 1999, the parties agreed to the purchase and sale of cabinets manufactured by Holiday Kitchens for a total purchase price of $10,900.00. In its advertising, Capital says that it is the "exclusive authorized distributor" of Holiday Kitchens. The writing included a drawing showing how the cabinets would be arranged in Plaintiff's kitchen, together with appliances, and contained the dimensions and other descriptive information about the cabinets. Of the total purchase price, $3,000.00 was paid on signing of the contract, and $7,900.00 was paid on December 30, 1999 upon delivery of the cabinets by the manufacturer.
The contract for the cabinets did not provide for installation. On Capital's recommendation, Mr. Malul hired Barry Burger to install the cabinets and paid him $1,600.00 to do so. Despite Mr. Burger's role in the cabinet project, and the significance of installation to some of the problems that developed, he did not testify at trial. Since Mr. Burger has a relationship with both Capital and Mr. Malul, and neither party offered any explanation for his failure to testify, the Court makes no negative inference because (*3)of his absence.
The installation of the cabinets began in January 2000 and was completed, to the extent possible, in March. Not all of the pieces had been delivered, but Capital committed to get them. Meanwhile, on April 3, Capital and Mr. Malul entered into a second contract for additional cabinets at the total price of $2,300.00. Sometime in April, the additional cabinets were delivered and installed by Burger.
According to Mr. Malul, within a couple of weeks, the doors on several of the cabinets began to "melt", i.e. the laminate began to "pull" from the substrate. As later explained by Mr. Gangitano, the doors are thermafoil coated, produced by applying a heated laminate over medium density fiberboard. (A General Technical Information sheet distributed by Holiday Kitchens describes the doors as "foil-wrapped.") Several of the doors were replaced by Capital a number of times, but the problem recurred with the replacement doors. Mr. Malul testified that 6 of the total of 30 doors evidenced the problem.
In addition to the "melting" doors, Mr. Malul testified to other problems: three doors are not of the design ordered, and, although they have been replaced twice, they are still wrong; panels for the refrigerator and dishwasher were the wrong size, and have yet to be replaced; molding is missing in some places, and putty used instead of formica in others; doors and draws are crooked; and the oven and refrigerator were installed in such (*4)a manner that it is difficult to open the refrigerator. Mr. Malul produced a "melted" door and photographs illustrating most of these problems.
Patrick Gangitano is an independent representative for Holiday
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