Berish v. Bornstein, 21 Mass. L. Rptr. 530 (2006)

Citation: Berish v. Bornstein, 21 Mass. L. Rptr. 530 (2006)
Parent Document: Berish v. Bornstein, 21 Mass. L. Rptr. 530 (2006)
Jurisdiction: Massachusetts (state)
Effective Date: 2006-05-22
Original Source: https://www.courtlistener.com/opinion/8356288/berish-v-bornstein/ ↗

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The allegation is that the Defendants installed some 429 windows without adequate flashing. Of that number, 78 were clerestory windows. The current replacement cost is $2,064.00 per window, which would include the cost of flashing and repairing water damage, if any, and also covers the cost of fixing a clerestory window. If there was in fact damage around a clerestory window, it would then become necessary to stage the roof area to check for rot and to remove drywall where there may have been evidence of water damage. The cost to perform the removal and re-installation of these windows in 1987 dollars is $885,456.00. The current cost, as testified to by the Trustees’ experts, is $1,628,531.00. The Defendants offered no expert testimony as to the fair and reasonable cost of flashing the windows and repairing the problems caused by the lack of flashing, and they have not offered any expert testimony relating to the labor hours necessary to accomplish the work. The Defendants do suggest that the only windows that should be replaced were those windows that actually leaked; the Plaintiffs are not willing to make that concession. However, the court is also not convinced by a preponderance of the evidence that the fair and reasonable cost today of flashing the windows and repairing the windows caused by inadequate flashing is $1,628,531.00. By this Court’s calculations, only 22 percent of the windows experienced some difficulty, be it water leaks or drafts, and the court would thereby make an adjustment and award damages to the Plaintiff amounting to 22 percent of $1,628,531.00, or $358,274.62. 2. Bathroom Ventilation

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