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 Trustees allege that 11 chimneys at the condominium were improperly framed and 3 chimneys were of insufficient height, breaching the warranty of habitability and constituting negligence. The Trustees first learned of problems with chimney framing and chimney clearance in early 1987. However, these defects were not asserted in the First Amended Complaint filed on February 25, 1987, the Second Amended Complaint filed on September 22, 1987, or the Third Amended Complaint filed on October 26, 1988, nor were they addressed at the first trial. Given the failure to seek damages for the specific defects of chimney clearance and framing until the second trial on January 10, 2005, any negligence or breach of implied warranty of habitability claim based on these defects is time-barred. Alternatively, the Trustees have waived their right to recover for these conditions as independent defects by failing to introduce any evidence on those issues at the first trial. See Gram v. Liberty Mut Ins. Co., 391 Mass. at 335; M.B. Claff, Inc. v. Massachusetts Bay Transp. Auth., 59 Mass.App.Ct. at 677-78 & n.9. 9.Cut-in decks

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