Driscoll v. Toll MA Ltd. Partnership, 26 Mass. L. Rptr. 345 (2009)

Citation: Driscoll v. Toll MA Ltd. Partnership, 26 Mass. L. Rptr. 345 (2009)
Parent Document: Driscoll v. Toll MA Ltd. Partnership, 26 Mass. L. Rptr. 345 (2009)
Jurisdiction: Massachusetts (state)
Effective Date: 2009-12-28
Original Source: https://www.courtlistener.com/opinion/8357328/driscoll-v-toll-ma-ltd-partnership/ ↗

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There is also a genuine issue of material fact as to whether the defendants’ performance of the required repairs under the Limited Warranty was so deficient as to constitute a material breach of the Agreement and the express warranties therein, thereby excusing the plaintiffs from continuing to resort to the Limited Warranty as their sole remedy for the defects in their home. See New England Power Co. v. Riley Stoker Corp., 20 Mass.App.Ct. 25, 30-31 (1985) (“[W]hen there are a warranty and a promise to repair, the remedy of first resort is the promise to repair. If that promise is not fulfilled, then the cause of action is the underlying breach of warranty”). In particular, there is a material dispute as to whether the defendants *347satisfied their obligations under the Limited Warranty when they installed a sump pump to remedy the basement flooding, which was allegedly attributable to the fact that the defendants had set the house’s foundation too low and failed to install a proper drainage system. Notwithstanding the defendants’ suggestion that the plaintiffs have not experienced any flooding since October 2005, the plaintiffs do not agree that the defendants’ remedial measures have corrected their water problems, and their expert’s affidavit refutes the defendants’ position. Therefore, summary judgment is inappropriate as to Counts I and VI.

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