Opinion
SC-0852-17/GF
08-29-2018
Opal CLARK, Plaintiff v. Walter E. BROWNELL and Catherine A. Brownell, Defendants
Opal Clark, pro se, Plaintiff Cutler, Trainor & Cutler, LLP., Ryan P. Pezzulo, Esq., of counsel, for the Defendants
Opal Clark, pro se, Plaintiff
Cutler, Trainor & Cutler, LLP., Ryan P. Pezzulo, Esq., of counsel, for the Defendants
Gary C. Hobbs, J.
PROCEDURAL BACKGROUND
On or about December 7, 2017, Plaintiff Opal Clark commenced a small claims proceeding against the Defendants seeking $5000.00 in damages for "conversion of personal property, breach of contract failing to perform work in accordance of the terms and non-performance of work." On January 8, 2018, Defendant Walter E. Brownell filed a counterclaim seeking $1280.00 in damages for "breach of contract non-payment for services in accordance of contract."
The matter was tried without a jury on June 22, 2018 and July 13, 2018. During the trial, this Court has heard the testimony from the Plaintiff, Opal Clark and Defendants, Walter Brownell and Catherine Brownell, and from a non-party witnesses, Shale Miller and Michael Aldrich. This Court received and has reviewed the exhibits admitted into evidence. More importantly, this Court was able to observe the demeanor of the respective parties and the witnesses and this Court has evaluated the credibility of the respective witnesses. Based on the testimony and evidence that this Court finds to be credible, the following are this Court's Findings of Fact and Conclusions of Law.
THE PARTIES' RESPECTIVE CLAIMS
The Plaintiff asserts that the Defendants breached a written construction contract (Pl.Ex.1) for the renovation of the Plaintiff's business location at 6752 Route 8, Brandt Lake, Warren County, New York. Here, the Plaintiff asserts that the Defendant removed the bathroom sink and toilet and bathroom light fixture, without permission; three of four installed doors do not properly open or close; two installed windows do not open or close; the Sheetrock was left with large gaps and was not taped or painted; the electric box was improperly relocated using a used box, rather than a new box, which was left open and dangerous; the phone jack and camera jack were cut or disconnected by the Defendant and not replaced; the Defendant removed all of the copper plumbing in the property, without the Plaintiff's consent; the collar ties were not installed per the renovation plans, and three beams are not connected; one beam is constructed over a window, contrary to the plans, and the window frame is now sagging; the Defendant jacked the building leaving gaps in the basement; the concrete poured floor in the basement is not smooth and has pieces of wood inside the concrete; the lally columns were not properly welded by the Defendant; the Defendant installed 12 lally columns, when the plans required 14 columns; the Defendant cracked the main support beam, which needed repair; and because the Defendant failed to follow the plans, the Plaintiff needs to have a new structural analysis performed on the building.
The Defendants assert that Defendant Catherine Brownell did not sign the contract and is not a proper party to this action. With respect to Defendant Walter Brownell, the Defendant asserts that he performed all of the work required pursuant to the parties' written contract, which only required the Defendant to provide labor. The Defendant asserts that he performed his work in a good and workmanlike fashion, which is confirmed because his work passed the building inspector's inspections and the Plaintiff received a certificate of occupancy. He performed additional work, outside of the original contract, that was verbally requested by the Plaintiff, and that he did not charge for this work.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In a small claims action, the Court is required to "do substantial justice between the parties according to the rules of substantive law." Williams v. Roper , 269 AD2d 125, 126 (1st Dept. 2000), citing , New York City Court Act § 1804; Scaringe v. Holstein , 103 AD2d 880, 880 (3d Dept. 1984). In the present action, the Plaintiff's claim and the Defendant's counterclaim are both for breach of contract (i.e.; breach of the parties' written lease agreement). The essential elements of a breach of contract claim are 1) the existence of a contract, 2) the Plaintiffs' performance pursuant to the contract, 3) the Defendants' breach of his or her contractual obligations, and 4) damages resulting from the breach. Dee v. Rakower , 112 AD3d 204 (2d Dept. 2013) ; Elisa Dreier Reporting Corp. v. Global Naps Networks, Inc. , 84 AD3d 122, 127, 921 N.Y.S.2d 329 (2d Dept. 2011) ; Brualdi v. Iberia Lineas Aeraes de España, S.A., 79 AD3d 959, 960, 913 N.Y.S.2d 753 (2d Dept. 2010). The Plaintiff, having brought this claim, has the burden of proving, by a preponderance of the credible evidence, all of the essential elements of her breach of contract claim and Defendant Walter Brownell has the burden of proving his counterclaim. See; Zheng v. City of New York , 19 NY3d 556, 564 (2012) ; Callanan Indus. Inc. v. Olympian Dev. Ltd. , 225 AD2d 941, 943 (3d Dept. 1996) ; Hall v. Krohmer , 42 Misc 3d 1220(A) (County Court, Suffolk County, 2014).
A. Parties' Written Agreement
On September 30, 2017, the Plaintiff and Defendant Walter Brownell entered into a written contract for certain specified work to be performed at Plaintiff's business property located at the Clarks Country Mall, 6752 State Route 8, Brandt Lake, New York [Pl.Ex.1]. The agreement provided, in pertinent part, that Defendant Walter Brownell was to gut the entire building, relocate the power box to the upstairs, install basic wiring in the building, remove the existing chimney, install 3 new cross beams on the main floor, Sheetrock exterior walls on the main floor, leave all rafters exposed, install 3 new windows, jack-up the floor as close to the original as the condition of the building would allow, install two new beams in the basement with footers and steel posts, erect the wall for the office and Sheetrock, use the exterior door from the porch on the office, sheet floor with 3/4? T & G, install 2 3/0 doors, and install bolts in rafters. The contract was for Defendant Walter Brownell's labor only as the Plaintiff was required to supply all materials and pay all dump charges.
The Plaintiff had plans drafted by Miller Designs for the construction project [Pl.Ex.2], which were to be followed by Defendant Walter Brownell in connection with his renovations.
Defendant, Catherine Brownell, was not a party to the contract and she is not an owner in or employee of Defendant Walter Brownell's business. Other than providing some minor assistance to her husband, such as legibly handwriting the contract, bringing coffee to the work site or providing some minor labor on the project, there was no evidence that Mrs. Brownell had any duty or responsibility under the contract or that she was responsible for any of the construction defects alleged by the Plaintiff.
As a result, the Plaintiff's claims against Defendant, Catherine Brownell, are hereby dismissed .
B. Plaintiff's Claim for Breach of Contract .
This Court is satisfied that the Plaintiff proved, by a preponderance of the credible evidence, that the Defendant breached the contract by failing to follow the construction plans. More specifically, this Court accepts the testimony of Shale Miller, the architectural designer, who prepared the construction plans. Here, Mr. Miller inspected the Defendant's work and found that the Defendant failed to properly install the collar ties. The collar ties keep the roof rafters from pulling apart. The Defendant installed the collar ties and left a gap of about 1½; inches from the roof decking. According to Mr. Miller, the collar ties need to be removed and new members installed. Mr. Miller also testified that the Defendant improperly installed the partition walls, which are not level causing three of the new doors to stick and fail to open properly. To correct, the Plaintiff must re-shim and rehang the doors. The tie beams were also not constructed in accordance with the plans. The lower set of three tie beams are intended to keep the exterior walls from separating. One of the tie beams was improperly constructed over a window, which does not provide sufficient support for the beam. This causes the window framing to sag and, as a result, the window does not function. In the basement area, the building was originally constructed with only one central carry beam, which had cracks and needed to be replaced or reinforced. The plans called for installation of three new beams to support the existing central beam and support the load. According to Mr. Miller, the Defendant failed to follow the plans and failed to install all posts per the plans. The plans required 14 lally columns, but only 12 columns were installed. The plans required solid lally columns, but the Defendant installed screw jack posts, which were installed upside down. The Defendant then failed to properly weld the screw jack posts. As a result of the Defendant's failure to follow the plans, Mr. Miller testified that the building would require a structural inspection to determine if the work performed by the Defendant will meet the required loads per the plans. The cost to have the Defendant's work reviewed by an engineer and the plans certified as "as built" plans would be $800.00, in addition to the cost to correct these noted defects.
This Court also credits the Plaintiff's testimony that the Defendant breached the agreement by removing all of the PVC and copper plumbing in the bathroom without the Plaintiff's consent. In fact, the Defendant testified that he provided the copper to an associate, Lenny Bradway. This Court rejects the Defendant's assertion that he removed all of the plumbing as part of his agreement to gut the property. This assertion was contradicted by the Defendant's testimony that the parties' contract did not include work to be performed on the bathroom. Furthermore, the Defendant's assertion is contradicted by the parties' contract, which does not include for the removal of plumbing from the property. The contract does list the other items to be removed, such as the removal of the existing chimney, but removal of existing plumbing is not listed. As a result, the Plaintiff did prove, by a preponderance of the credible evidence, that the Defendant breached the parties' contract by removing the PVC and copper plumbing from the bathroom.
However, the Plaintiff did fail to prove some of her claimed items of damages. More specifically, the Plaintiff claimed damages for certain work that was not completed by the Defendant. This Court credits the Defendant's testimony that the alleged incomplete work was outside the scope of the parties' contract. More specifically, the Plaintiff claimed that the Defendant failed to install a new circuit breaker box; failed to tape the installed Sheetrock; failed to prime and paint the Sheetrock; failed to perform finished carpentry trim work around doors and windows; failed to install all electrical switches and outlets; and failed to install vinyl flooring and trim in the bathroom [Pl.Ex.16,18,19].
These items, however, were never agreed by the Defendant to be completed. While the parties' agreement required the Defendant to relocate the existing power box, it did not require the Defendant to supply a new circuit breaker box [Pl.Ex.1]. Similarly, the contract required the Defendant to Sheetrock exterior walls on the main floor, but it did not require taping, priming or painting of the Sheetrock walls [Pl.Ex.1]. While the Defendant agreed to install 3 new windows, there was no agreement that the Defendant would perform finished trim work on the windows or on any doors [Pl.Ex.1]. The parties' contract required the Defendant to install basic wiring, but did not require installing switches and outlets. As a result, the Plaintiff's claim for unfinished work that was outside the parties' agreement is hereby dismissed.
Similarly, the Plaintiff failed to prove that the concrete flooring work in the basement was improperly performed by the Defendant. The Plaintiff failed to provide this Court with credible evidence that the concrete flooring was improperly installed by the Defendant. Here, the Plaintiff's expert, Mr. Miller, did not testify to any problems with the concrete flooring. As a result, the Plaintiff's claim for defective concrete flooring work in the basement is also dismissed.
The Defendant is correct that the issuance of a certificate of occupancy, which was complementary to a building permit, generally has the effect of demonstrating that the construction was found to be in conformity with pertinent municipal ordinance provisions, and that the work performed conforms substantially to the approved plans and specifications. DiPasquale v. Haskins , 25 AD2d 490, 490 (4th Dept. 1966), citing , 2 Rathkopf, The Law of Zoning and Planning, pg. 55—20. However, this issuance of the certificate of occupancy is not conclusive evidence that the work conforms to the plans. It is well settled that the issuance of a certificate of occupancy does not preclude the Plaintiff from commencing an action against the contractor for breach of contract, provided that the Plaintiff can demonstrate that, despite the issuance of a certificate of occupancy, the work was defective or that the work failed to substantially conform with parties' contract or building plans. See ; 110 Cent. Park S. Corp. v. 112 Cent. Park S., LLC , 41 Misc 3d 380, 388 (Sup. Ct., New York County, 2013) (holding that a provision in the construction contract that the issuance of a "certificate of occupancy is presumptive evidence that the building is completed according to offering plan specifications" and the issuance of occupancy, does not relieve the Defendant of its obligation to build a building in accordance with the specifications described in the plan); Curreri v. New Town and Country Corp. , 60 AD3d 718 (2d Dept 2009) (in personal injury claim from a fall down stairs, the jury found that Defendant construction companies were negligent in the construction of stairs, despite the issuance of a certificate of occupancy, but the defective construction was not the proximate cause of the Plaintiff's injuries).
Here, the testimony of Shale Miller did demonstrate that, despite the issuance of the certificate of occupancy, the Defendant's work failed to substantially conform with parties' contract or building plans.
C. Plaintiffs' Claim for Conversion
The Plaintiff's complaint also seeks damages for the Defendant's conversion of the PVC and copper plumbing from the bathroom area. However, it is well settled that a conversion claim may not be maintained where damages are merely sought for a breach of contract. See ; NY Pattern Jury Instructions 3:10, citing , Daub v. Future Tech Enterprise, Inc ., 65 AD3d 1004, 885 NYS2d 115 (2d Dept 2009) ; Selinger Enterprises, Inc. v. Cassuto , 50 AD3d 766, 860 NYS2d 533 (2d Dept 2008) ; Whitman Realty Group, Inc. v. Galano , 41 AD3d 590, 838 NYS2d 585 (2d Dept 2007) ; Sutton Park Development Corp. Trading Co. Inc. v. Guerin & Guerin Agency Inc ., 297 AD2d 430, 745 NYS2d 622 (3d Dept 2002) ; Interstate Adjusters, Inc. v. First Fidelity Bank, N.A. , 251 AD2d 232, 675 NYS2d 42 (1st Dept 1998) ; Peters Griffin Woodward, Inc. v. WCSC, Inc. , 88 AD2d 883, 452 NYS2d 599 (1st Dept 1982).
Since the Plaintiff's conversion claim is duplicative of her claim for breach of contract, the conversion claim is dismissed. See ; M.D. Carlisle Realty Corp. v. Owners & Tenants Elec. Co. Inc. , 47 AD3d 408, 409 (1st Dept. 2008) (dismissing a conversion claim as duplicative of a breach of contract claim); JCMC Flatiron, LLC v. Princeton Holdings LLC, 45 Misc 3d 1204(A) (Sup. Ct., New York County, 2014).
D. Plaintiff's Proof of Damages
As a general rule, the proper measure of damages in cases involving the breach of a construction contract is "the difference between the amount due on the contract and the amount necessary to properly complete the job or to replace the defective construction, whichever is appropriate." Lyon v. Belosky Const. Inc. , 247 AD2d 730, 731 (3d Dept. 1998), quoting , Sherman v. Hand , 195 AD2d 810, 600 N.Y.S.2d 371 (3d Dept. 1993). See also ; Rivers v. Deane , 209 AD2d 936, 619 N.Y.S.2d 419 (4th Dept. 1994) ; Home Const. Corp. v. Beaury , 149 AD3d 699, 702 (2d Dept. 2017) (holding that the Supreme Court properly concluded that the Defendant homeowners were entitled to be compensated for the cost of completion of the construction work and the correction of defects in Home Construction's work, and the proper measure of damages is the fair and reasonable market price for correcting the defective installation or completing the construction).
Where, as here , a contractor's work is defective due to failure to comply with plans and specifications, the owner's usual measure of damages is the reasonable cost of bringing the work into conformity with the contract requirements. However, where the contract was substantially performed and replacement would result in economic waste because the defect is trivial and innocent on the part of the contractor, then the measure of damages is the difference in value between the work required and the work actually performed. 4E N.Y.Prac., Com. Litig. in New York State Courts § 121:25, Contractor's Defective or Incomplete Performance, (4th ed.).
This Court has reviewed the Plaintiff's evidence of her alleged damages [Pl.Ex.16,17,18,19 and 20], together with the testimony of Plaintiff's expert, Shale Miller. With respect to the removed plumbing, the following invoices prove that purchases were made by the Plaintiff to replace the improperly removed PVC and copper plumbing: a) $114.45 Lowes Receipt No.29539940, dated 11/1/17; b) $11.78 and $8.15 from Stephenson Lumber Co., Inc. Receipt # 1711-C91586, 11/11/17; c) $11.78 from Stephenson Lumber Co., Inc. Receipt # 1711-291613, 11/11/17; d) $.99 in Mountain Hardware Receipt # 20117, 11/24/17; e) $1.79 in Mountain Hardware Receipt # 20101, 11/24/17; and f) $1.79 in Mountain Hardware Receipt # 20387, 11/28/17 for a total amount of $150.73 to replace the improperly removed plumbing.
The Plaintiff is not granted damages for the purchase of wiring, lumber, and other materials set forth on Pl.Ex.20, since the parties' contract required the Plaintiff to supply the materials, and there was insufficient evidence to support the balance if purchases as damages that are set forth in [Pl.Ex.20].
With respect to the Defendant's defective work, as confirmed by Shale Miller, the Plaintiff provided four (4) estimates to correct the defects [Pl.Ex.16,17,18 and 19]. However, these estimates also include work that this Court has held are not proper damages, such as in Pl.Ex.19 for $5000.00 to "finish the interior, Sheetrock walls, add peg board, finish windows and door in a trim to match decor ..." In addition, some of the estimates fail to itemize the costs for each item of work [Pl.Ex.16,17,18]. Instead, these estimates merely provide a total cost for the work listed. Since these estimates include both work that this Court has decided is outside the scope of the parties' contract and work needed to correct the Defendant's construction to conform to the plans, these estimates [Pl.Ex.16,17,18] are insufficient to provide the Court with a basis to set damages. One estimate provided by Gary Baker, dated April 30, 2017, [Pl.Ex.19] does provide this Court with credible evidence of damages confirmed by Mr. Miller's testimony. More specifically, the amounts of a) $1000.00 to install the LVL's according to the drawing and $2200.00 for the adding of "lolly [sic] columns to the basement per drawings, add footing for each column ..." [Pl.Ex.19] concur with Mr. Miller's testimony.
The balance of the items of damages set forth in Pl.Ex.19 are rejected by this Court as being outside of the parties' contract (i.e.; taping, finished trim work, a new 200 amp panel box, etc.) and/or as being not supported by the credible evidence.
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It is well settled that, in a small claims action, one estimate is sufficient to prove damages, provided that the estimate is supported by other credible evidence. See ; DerOhannesian v. Bergman , 134 Misc 2d 540 (NY City Ct 1987) (holding that Uniform City Court Act section 1804, which states that a prima facie case of reasonable damages can be proven in small claims court by two estimates or one paid invoice or receipt, does not mean that one estimate in itself is insufficient); Alvarado v. Smart Laser , 23 Misc 3d 1133(A)(Dist. Ct., Nassau County, 2009) (holding that, in a small claims action, a single estimate with corroborating evidence may be sufficient to award damages, provided that the evidence is supported by a preponderance of the evidence); Goldstein v. K & K Marble Importers, Inc. , 2003 NY Slip Op 50762(U)(App. Term Feb. 13, 2003) (holding that may be established in a small claims action through expert testimony, in addition to the paid invoices or an estimate).
Thus, Plaintiff's Exhibit 19, taken together with the testimony of Mr. Miller, is sufficient to prove damages in the amount of $3200.00. This Court also grants the amount of $800.00 , as testified by Mr. Miller, as the cost to have the work reviewed by an engineer and the plans certified by the engineer as "as built" plans.
E. Defendant's Counterclaim
The Defendant's counterclaim sought $1280.00 for the additional work performed at the Plaintiff's request that was outside the scope of the parties' contract. While this Court agrees that the Plaintiff requested, and the Defendant provided, additional work beyond the scope of the parties' agreement, the Defendant failed to produce any testimony or evidence of the amount or reasonable value of his additional work. Thus, there was absolutely no testimony or evidence to support the Defendant's damages. As a result, the Defendant's counterclaim is dismissed. UCCA 1804.
F. Conclusion
Based on the foregoing, the Plaintiff has proven, by a preponderance of the credible evidence, her claim for breach of contract against Defendant Walter Brownell. The Plaintiff failed to prove any viable claim against Defendant Catherine Brownell, and the complaint as against Mrs. Brownell is dismissed. The Plaintiff demonstrated damages in the amount of $4150.73, together with costs and disbursements of this action in the amount of $26.00, for a total award in favor of the Plaintiff against Defendant Walter Brownell in the amount of $4176.73 , and the Plaintiff shall have execution thereon.