Opinion
2017-1436 N C
12-13-2018
A & D POOL SERVICE, INC., Respondent, v. Nancy HAYDEN, Appellant.
Nancy Hayden, appellant pro se. A & D Pool Service, Inc., respondent pro se (no brief filed).
Nancy Hayden, appellant pro se.
A & D Pool Service, Inc., respondent pro se (no brief filed).
PRESENT: BRUCE E. TOLBERT, J.P., JAMES V. BRANDS, TERRY JANE RUDERMAN, JJ
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the District Court for the entry of a judgment dismissing plaintiff's action and awarding defendant the principal sum of $300 on her counterclaim.
In this commercial claims action, plaintiff seeks to recover the sum of $4,151.45 for defendant's alleged breach of a contract related to the repair of defendant's pool, including the replacement of the pool liner. Defendant counterclaimed, alleging that plaintiff had irreparably damaged the pool's heat pump by improperly winterizing the pool, had broken a pool light and had improperly installed the pool liner.
At a nonjury trial, defendant testified that the parties never reached an agreement for plaintiff to do the work on defendant's pool and that she came home one day to find plaintiff's workers there, who informed her that plaintiff had completed the work. Neither party testified that defendant had authorized the work prior to its commencement and completion. While plaintiff's owner testified that defendant had received a bill when the work was done, defendant testified that she had never received a bill. Plaintiff's owner submitted into evidence a text message which defendant had sent him, dated several months after the completion of the work, in which defendant stated that she would send plaintiff a check the following week. Defendant testified that the only reason she had sent that text was because plaintiff had threatened to defame her and ruin her business. Following the trial, the District Court awarded plaintiff the principal sum of $3,526.45 and dismissed defendant's counterclaim.
In a commercial claims action, our review is limited to a determination of whether "substantial justice has ... been done between the parties according to the rules and principles of substantive law" ( UDCA 1807-A [a]; see UDCA 1804-A ; Ross v Friedman , 269 AD2d 584 [2000] ; Williams v Roper , 269 AD2d 125 [2000] ).
The elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance under the contract, the defendant's breach, and resulting damages (see New York State Workers' Compensation Bd. v SGRisk , LLC, 116 AD3d 1148, 1153 [2014] ; JP Morgan Chase v J.H. Elec. of NY, Inc. , 69 AD3d 802, 803 [2010]. "As with any contract, an oral agreement is not enforceable unless there is ‘a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms’ " ( Kelly v Bensen , 151 AD3d 1312, 1313 [2017], quoting Matter of Express Indus. & Term. Corp. v New York State Dept. of Transp. , 93 NY2d 584, 589 [1999] ; see also Saul v Cahan , 153 AD3d 947, 950 [2017] ). In determining whether there is an enforceable oral contract, " ‘the court looks not to the parties' after-the-fact professed subjective intent, but rather at their objective intent as manifested by their expressed words and conduct at the time of the agreement’ " ( Jump v Jump , 268 AD2d 709, 710 [2000], quoting Winkler v Kingston Hous. Auth. , 259 AD2d 819, 823 [1999] ). It is plaintiff's burden to establish that the parties' agreement was sufficiently specific to be enforceable (see Muhlstock v Cole , 245 AD2d 55, 58 [1997] ). Price is a material term of a contract (see Tufano v Morris , 286 AD2d 531, 534 [2001] ; Village of Lansing v Triphammer Dev. Co. , 193 AD2d 919, 920 [1993] ). Here, the parties never "mutually assented" to the work to be performed. It is undisputed that defendant requested, but plaintiff never supplied, a cost estimate. Defendant's unrebutted testimony was that the work was done in her absence and without her prior consent.
Plaintiff further asserts that defendant assumed the obligation to pay after the work was completed, based on defendant's text message stating that she would send a check the following week. Defendant contends that this text was motivated by plaintiff's threats to defame her and ruin her business. The text, however, is insufficient to create a contractual obligation where none existed before. "Past consideration is insufficient to support a contractual obligation" ( Beitner v Becker , 34 AD3d 406, 408 [2006] ), except as specified in General Obligations Law § 5-1105, which creates a limited exception for a "promise in writing and signed by the promisor" which expresses past consideration. A writing is only enforceable pursuant to section 5-1105 if it "contain[s] an unequivocal promise to pay a sum certain, at a date certain, and must express consideration for the promise" ( Umscheid v Simnacher , 106 AD2d 380, 381 [1984] ). Here, the text message fails to satisfy the requirements of section 5-1105. Consequently, plaintiff's action should have been dismissed.
In view of the finding that the parties did not enter into a contract and that plaintiff is therefore not entitled to damages based on the installation of the pool liner, defendant cannot recover any damages based on the pool liner's alleged improper installation.
The parties offered conflicting testimony regarding the damage to the pool's heat pump. The District Court's implicit liability finding that plaintiff did not damage the heat pump, which was necessarily premised upon the court's conclusions as to the credibility of the witnesses, has support in the record (see Vizzari v State of New York , 184 AD2d 564 [1992] ; Kincade v Kincade , 178 AD2d 510, 511 [1991] ), and should remain undisturbed.
In order to establish damages on her counterclaim, defendant was required to provide a paid invoice or two itemized estimates for each item (see UDCA 1804 ). Plaintiff did not deny that its worker had broken the pool light. Defendant submitted two estimates for the light repair, $620 and $300, respectively. Defendant is therefore entitled to $300 on her counterclaim for a broken pool light.
In view of the foregoing, we are of the opinion that the judgment failed to provide the parties with substantial justice according to the rules and principles of substantive law (see UDCA 1804-A, 1807-A [a]; Ross v Friedman , 269 AD2d 584 ; Williams v Roper , 269 AD2d at 126 ).
Accordingly, the judgment is reversed and the matter is remitted to the District Court for the entry of a judgment dismissing plaintiff's action and awarding defendant the principal sum of $300 on her counterclaim.
TOLBERT, J.P., BRANDS and RUDERMAN, JJ., concur.