Opinion
Index No. SC-000156-21/LF
05-10-2022
Terrence M. Kalka, Plaintiff, v. Ronald Shorer, John Lerch, Defendants.
Joseph Cirillo, Esq. Attorney for Plaintiff(s) Ronald Schorer John Lerch Pro Se Defendant(s)
Unpublished Opinion
Joseph Cirillo, Esq. Attorney for Plaintiff(s)
Ronald Schorer John Lerch Pro Se Defendant(s)
Joshua P. Bannister, J.
Parties, Claim, Trial
Plaintiff Terrence M. Kalka (homeowner) filed the instant action on August 18, 2021, seeking $4,975 in damages against the Defendants Ronald Schorer and John Lerch. Defendant Ronald Schorer filed a counterclaim against Terrance M Kalka on October 5, 2021 seeking $2,172 pursuant to a contract. The matter ultimately proceeded to trial on March 17, 2022 and was concluded on April 8, 2022.
Facts
The Plaintiff and his spouse appeared and testified in substantial part that he retained the services of Defendant to replace the hot water heater and install a water softener, that Defendant negligently installed the same causing damage to the plumbing as well as water damage in the basement. The testimony was that the water was leaking from the main line for over an hour which flooded the basement causing damage to stored items in the basement such as the Plaintiff's clothing. The Plaintiff testified that the Defendant damaged a sink in the basement, that dirty water in the pipes clogged the kitchen sink, toilet, and washer as a result of negligently installing a hot water heater and water softener. Plaintiff testified that Defendant Schorer was present during this time, stayed upstairs, and was consulted periodically by Defendant Lerch about how to handle various situations that came up during the course of the work. The testimony was also that Defendant Schorer was present as the Village of Ilion repaired the water valve.
Plaintiff testified that he engaged the services of a different plumber to finish the installation of the water softener, replace the pipes in the basement, replace kitchen faucet, install a new fill valve in the toilet, and finish some wiring. The non-itemized bill for these services was $5,700. The Plaintiff never called BMR Contracting as a witness.
The Plaintiff admitted the following exhibits:
1. Receipt from BMR Contracting for $5,700
2. Business card from BMR Contracting
3. Checkbook copy of check number 2595 in the amount of $2,700 payable to John Lerch
4. Receipt from Village of Ilion in the amount of $375 for water repair
5. Receipt from Lowes in the amount of $74.69 for a faucet
6. Receipt from Amazon in the amount of $68.19 for a closet
7. Picture of the broken sink in the basement
8. Picture of plumbing in the basement
9. Picture of bare wires
10. Picture of electrical box
11. Price details for water heater and softener
12. Bill from Defendant Schorer directing Plaintiff to make payment to John Lerch in the amount of $1,800
13. Printout from Plaintiff's bank showing check number 2595 in the amount of $2,700 was cashed
14. Call log between Plaintiff and Defendant
Defendant Schorer appeared and essentially testified that he was acting exclusively as a referral agent and should not be responsible for the work performed by Defendant Lerch. Defendant Schorer testified that he made it clear that he was no longer in the business, gave referrals to plumbers Metot and Lerch, and that he only showed up with Defendant Lerch because he liked to get out for something to do.
Defendant Schorer called Peter Pisciotta, Jr. as a witness who testified that he was helping his friend Defendant Lerch and gave general testimony about the events that happened that day.
Discussion
The Court must adjudicate the claims in in such manner as to do substantial justice between the parties according to the rules of substantive law (see: UCCA §1804).
It was uncontroverted that at that time of the filing, Defendant John Lerch was a resident of Oneida County and does not have a primary place of business in Herkimer County. Accordingly, the Court on it's own motion dismissed the matter as it relates to Defendant John Lerch because this Court lacks the jurisdiction to hear claims when they relate to a defendant that resides outside the county (see: UCCA §1803). The Court also dismissed Defendant Schorer's counter claim because he did not submit any evidence to support his claim.
Before addressing the issue of liability, the Court must first address the relationship between Defendant Schorer and Defendant Lerch because Defendant Schorer cannot be liable if he is merely a referral agency (Matter for HTA New York, 255 A.D.2d 733 [1998]). "[T]he touchstone of employment is control over the results produced and means employed" (Matter of Concourse Ophthalmology Associates, 60 N.Y.2d 734 [1983]; see also: Matter of Abramson, 12 A.D.3d 805 [2004], Tunison v. P.C. Richards & Son, 257 A.D.2d 856 [1999], Hoffman v. Ryan, 101 Misc.2d 845 [1979]). This Court finds that Defendant Schorer not only made the referral to Defendant Lerch, but he also showed up to the work site, stayed for the duration of the work, reviewed pictures from and gave guidance to Defendant Lerch. Defendant Schorer also followed up with mailing an invoice to the Plaintiff. Although that invoice directs payment should be made to Defendant Lerch, it is another piece of evidence that ties the two parties together in some form of business relationship. Based on tall of the evidence presented, the Court finds that Defendant Schorer exercised a sufficient degree of control over Defendant Lerch beyond merely providing a referral. Therefore, I find that the Plaintiff has established sufficient evidence to establish an employment relationship under the law between Defendants Schorer and Lerch.
The next issue that the Court must address is the liability for damages to the home's plumbing, damage to items of personal property in the basement, the cost to complete the installation of the water softener, the fees to the village, and other consequential damages.
It is difficult for this Court to ascertain damages on the evidence that was presented. Expert testimony is especially critical in plumbing cases. For example, the Court in Adler v. Nelson, (125 Misc. 170 [1925]) held "Plaintiffs have therefore failed to show that the open window was the only possible cause of the break, in view of the evidence of the age and corrosion of the pipe. The mere possibility, or even probability, that the defendant's act or omission may have been the proximate cause of the damage complained of, is not sufficient to fasten liability upon him. 'The rule is well settled that, where there are several possible causes of injury, for one or more of which defendant is not responsible, plaintiff cannot recover, without proving that the injury was sustained wholly or in part by a cause for which defendant was responsible" (internal citations omitted).
On the one hand, the damage could very well be the result of the Defendant not properly shutting the water off at the main valve before commencing work. It may also be the result of the Defendant improperly installing the water heater and softener. On the other hand, the home in question was not a new home. The sink in the basement shows substantial wear and appears that it may have broken by any repair that was made to it. The Court did not review any pictures before the work on the pipes was conducted, but it is certainly possible that the pipes would have started leaking had the most capable plumber started work. The invoice from BMR contracting indicates that all the pipes in the basement had to be replaced because of the work of the prior contactor (the Defendant). While that may be the case, it is also a self-serving statement on the behalf of BMR Contracting who oddly enough wasn't called as a witness.
This Court having assessed all the evidence, finds substantial justice dictates that the Defendant is liable for the damage to the Plaintiff's home by negligently installing the water heater and softener as well as failing to complete the installation of the water softener.
However, this Court is not convinced that the Defendant is liable for replacing all the plumbing in the home, the Plaintiff's clothes, or the kitchen faucet. There must be some limit to the damages. "If the injury is not so great as to make the reparation or restoration of the property unreasonable or out of proportion to the condition and value thereof before the injury, the reasonable cost of repairs necessary to put the article in the condition in which it was before the injury will be considered the proper measure of damages. Indeed, in a given case, the cost of repairs which restore the property to its former condition may well be the best criterion of diminution in value. However, recovery on the basis of the reasonable cost of repairs to restore the property to its former condition is permitted subject to two limitations: (1) that the cost of repairs must be less than the diminution in the market value due to the injury; and (2) that the repairs must not exceed the value of the property as it was before the injury. The plaintiff is not entitled to benefit by the loss... [W]here repairs place the property in a better condition than before the accident, the increased value of the repaired article above its value before the accident may be deducted from the cost of repairs" (36 NY Jur 2d, Damages § 83).
In the absence of an itemized bill from the second plumber, the absence of the second plumber's own in court testimony, or any other credible evidence regarding the extent to which all the pipes in the home needed to be replaced, the Court will discount the amount of the claim to $2,500 without costs.
Order
Therefore, it is hereby ORDERED:
1. The petition as it relates to Defendant John Lerch must be dismissed;
2. The Defendant Ronald Schorer's counter claim is dismissed based on insufficient evidence;
3. Judgment will be entered against the Defendant in the amount of $2,500.
No costs will be awarded because the Defendant was successful in reducing the amount of the calculated damages.
This is the Decision and Order of the Court.