Opinion
SC-0822-18/GF
11-19-2019
Jessica NILES, Plaintiff, v. NATURE'S WAY PEST CONTROL, Defendant.
Jessica Niles, pro se Carter, Conboy (Gina T. Wisniewski, Esq., of counsel), attorneys for the Defendant
Jessica Niles, pro se
Carter, Conboy (Gina T. Wisniewski, Esq., of counsel), attorneys for the Defendant
Gary C. Hobbs, J.
Procedural Background
On or about December 31, 2018, the Plaintiff, Jessica Niles, commenced the instant small claims action seeking to recover $4875.00 from the defendant, Nature's Way Pest Control, based on an alleged breach of contract and negligent application of pesticides at her residence and for alleged resulting damage to the Plaintiff's roof. The plaintiff complained that the defendant breached the contract by a) failing to properly treat her residence for carpenter ants; b) failing to properly inspect and detect carpenter ant infestation at her residence; c) failing to take corrective action after being notified of the carpenter ant infestation. The Defendant asserted that it did not breach the parties' written contract. Here, the defendant asserted that the contract excluded treatment for carpenter ants because the Plaintiff decided not to obtain the more expensive treatment for carpenter ants. To the extent that the Defendant's employees applied treatment for carpenter ants during the term of the contract, the treatment was performed as a courtesy and not as part of the contract. The defendant further asserts that the Plaintiff's alleged roof damage was unrelated to any treatment or lack of treatment performed by the Defendant at the Plaintiff's residence. Finally, the Defendant asserts that, even if its treatment of carpenter ants is covered by the parties' contract, the contract contains a limited warranty and the Plaintiff is bound by the specific language of the warranty.
The matter was tried, without a jury, commencing on May 10, 2019, and was continued on May 14, 2019, September 16, 2019 and was completed on September 18, 2019. During the trial, this Court was able to observe the testimony and assess the credibility of the testimony given by each witness. The plaintiff and defendant's owner, Jason Sankey, both testified, together with non-party witnesses, Bryan Mull (defendant's former employee). This Court has also received into evidence and reviewed Plaintiff Exhibits 1-26 and Defendant's Exhibits A-B. Based on that determination of the credibility of each witness, and based on this Court's review of the exhibits introduced into evidence, the credible proof submitted in this case demonstrated the following facts.
Bryan Mull, the defendant's employee, testified voluntarily for the Defendant on May 14, 2019. At the end of his direct testimony, there was insufficient time for the Plaintiff to cross-examine Mr. Mull. On September 16, 2019, without notifying the Court or the Plaintiff, the Defendant failed to have Mr. Mull appear for the continuation of the trial. At that time, the Defendant indicated that Mr. Mull had been terminated and that they would not be having Mr. Mull appear for further testimony. This Court adjourned the proceedings to September 18, 2019 for the Defendant to have Mr. Mull appear to conclude his testimony, and advised the Defendant that it would consider an adverse inference from failing to have Mr. Mull available to complete his testimony. On September 18, 2019, the Defendant asserted that they would not have Mr. Mull appear, and asserted that he was not a witness within the Defendant's control. On September 18, 2018, this Court held that it would take an adverse inference from the Defendant's failure to produce Mr. Mull on the grounds that a) Mr. Mull clearly had knowledge of facts material to the trial, since he was already a witness; b) his testimony was non-cumulative and was favorable to the Defendant, since the Defendant called him to testify and he appeared voluntarily for the Defendant; and c) that the witness was available to the Defendant, since his address was known to the Defendant and the Defendant chose not to subpoena or otherwise notify their witness to appear. See;
Findings of Fact
In January of 2016, the Plaintiff contracted to purchase 3 Cleveland Avenue, Saratoga Springs, New York. During the pre-closing structural and pest inspection of the property, it was found to have visible evidence of carpenter ants and damage from carpenter ants [Pl.Ex.1; Pl.Ex.3, pg. 2, ¶8]. The inspection report recommended treatment for the control of carpenter ants [Pl.Ex.1]. Prior to the closing, the Plaintiff contacted Nature's Way Pest Control for an inspection, which was performed by Defendant's employee, Bryan Mull. Mr. Mull advised the Plaintiff that there was no evidence of live carpenter ants, but carpenter ants can return. Mr. Mull further advised the Plaintiff that, if she wanted a warranty for carpenter ants, she would need a new contract with Nature's Way. The Plaintiff closed on the purchase of the property in March of 2016, and began moving into the property in June of 2016 and was fully moved in by the Fall of 2016.
In April/May of 2016, the Plaintiff found a roof leak at her property. While the Plaintiff initially testified that the leak was not in the area of the carpenter ant infestation, she later admitted that she did not know exactly where the leak was located. The roof leak was repaired. On September 30, 2016, the Plaintiff again contacted Nature's Way for pest control service. Mr. Mull again inspected the property, including the location of the previous carpenter ant infestation at the roof of the attic. Mr. Mull told the Plaintiff that he found no evidence of live carpenter ants. On September 30, 2016, the Plaintiff contracted with the Defendant to purchase a "General Pest Program" [Pl.Ex.6]. The terms of the parties' agreement are confirmed by a General Pest Program Credit Card Authorization form [Pl.Ex.6], a Lifetime Warranty [Pl.Ex.6, pg. 2] and the Defendant's Invoice for the General Pest Program [Pl.Ex.19]. According to the General Pest Program Credit Card Authorization form, the Defendant's services included the elimination of any active infestation by "sugar ants, spiders, millipedes, centipedes, earwigs, wasps, hornets, yellow jackets, boxelder bugs, silverfish and mice" [Pl.Ex.6]. The General Pest Program Credit Card Authorization form did not specifically list carpenter ants as pests being treated by the Defendant [Pl.Ex.6]. However, the Defendant's September 30, 2016 invoice for initial cost of the "General Program" does specifically list treatment for "carpenter ants" together with other named pests [Pl.Ex.19]. On this invoice, the treatment of carpenter ants is not an additional charge, but is incorporated in the General Program fee. On September 30, 2016, the Defendant performed the first treatment of the Plaintiff's home under the parties' agreement, which included treatment for carpenter ants [Pl.Ex.19].
On October 10, 2016, the Plaintiff installed spray foam insulation in her attic area, including the area of the prior carpenter ant infestation. During the spray foam installation, the Plaintiff was advised by the installers that they found carpenter ants in the attic. The Plaintiff then contacted the Defendant, who returned to treat for carpenter ant infestation [Pl.Ex.8]. The Defendant's invoices demonstrate that it repeatedly treated the Plaintiff's residence for carpenter ants on September 30, 2016, November 22, 2016, January 24, 2017, March 28, 2017, May 30, 2017, and October 5, 2017 [Pl.Ex.7, 8, 9, 11, 19, 24]. As a result of her conversations with Mr. Mull and the Defendant's practice of regularly treating her property for carpenter ants, the Plaintiff understood that the contract included the treatment for carpenter ants. The Plaintiff relied on the Defendant in providing the correct treatment for her residence. The last date that the Defendant provided pest control services to the Plaintiff was October 5, 2017.
On February 26, 2018, the Plaintiff hired Hudson Valley Organic Pest Control to inspect and treat her home [Pl.Ex.13], because she continued to hear carpenter ant activity in the walls of her home. Hudson Valley found a live carpenter ant nest in the spray foam insulation situated in the attic roof area, which was in the same location as the previous carpenter ant infestation that had been shown to Mr. Mull by the Plaintiff [Pl.Ex.13 and 14]. Hudson Valley dug out the nest and treated the infested area [Pl.Ex.13]. Hudson Valley also found "roof rot and wet" near the ant nest [Pl.Ex.13]. The Plaintiff asserts that carpenter ants caused damage to the plywood surface of her roof [Pl.Ex.26] and, as a result, she had to replace her entire roof at a cost of $6650.00 [Pl.Ex.25].
The parties' contract included a "Lifetime Warranty," which provided in pertinent part that "I understand that only the pests specified in this agreement are covered under the LIFETIME WARRANTY." [Pl.Ex.6, pg. 2]. The Warranty further provides that if re-infestation occurs, "... we [Nature's Way] will treat as often as recommended by the technician between your regular scheduled services to eliminate the problem at no additional cost to you." [Pl.Ex.6, pg. 2]. However, these additional treatments will only continue for a period of three months [Pl.Ex.6, pg. 2]. If the Defendant is unable to eliminate an active infestation, then the customer is entitled to a maximum refund of $50.00 at the termination of the contracted services [Pl.Ex.6, pg. 2]. The Warranty specifically excludes liability for "... any damage to the structure occurring before, during, or after a treatment, this includes but is not limited to any type of damage caused by pests ..." [Pl.Ex.6, pg. 2]. Even though the Defendant's Warranty claims to be a "Lifetime Warranty," the warranty is only effective while the customer is an active customer with the Defendant [Pl.Ex.6, pg. 2]. Upon termination of the pest removal contract by either Nature's Way or the customer, the Warranty becomes "void." [Pl.Ex.6, pg. 2]. Thus, the Defendant's so-called "Lifetime Warranty" only applies while the customer is paying for the Defendant's services and the warranty excludes structural damage to a residence caused by Nature's Way's failure to properly treat an insect infestation [Pl.Ex.6, pg. 2].
Conclusions of Law
In a small claims/commercial 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).
The essential elements of a breach of contract claim are 1) the existence of a contract, 2) the plaintiff's performance pursuant to the contract, 3) the defendant's breach of its 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. 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).
In the present case, the Defendant asserts that the parties' contract clearly and unambiguously excludes treatment for carpenter ant infestation. The Plaintiff asserts that she told Mr. Mull that she was concerned about carpenter ant infestation, because of the structural report obtained when she purchased her home. She relied on the expertise of the Defendant's sales representative (Bryan Mull) to select the appropriate contracted services for her home, and that she understood that her agreement included carpenter ant treatment, especially since the defendant repeatedly provided carpenter ant treatment, without an additional charge.
Generally, "when the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving a practical interpretation to the language employed and the parties' reasonable expectations." Del Vecchio v. Cohen , 288 AD2d 426, 427-28 (2d Dept. 2001), quoting, Slamow v. Delcol , 174 AD2d 725, 726, 571 N.Y.S.2d 335, aff'd. , 79 NY2d 1016, 584 N.Y.S.2d 424, 594 N.E.2d 918. See also ; Weisberger v. Goldstein, 242 AD2d 622, 662 N.Y.S.2d 544 ; Mazzola v. County of Suffolk, 143 AD2d 734, 533 N.Y.S.2d 297 ; W.W.W. Assocs. v. Giancontieri, 77 NY2d 157, 565 N.Y.S.2d 440, 566 N.E.2d 639. Where there is a written agreement which purports to express the parties' entire agreement, extrinsic evidence that contradicts, varies, or explains the agreement is generally barred by the parol evidence rule. See; Braten v. Bankers Trust Co., 60 NY2d 155, 468 N.Y.S.2d 861, 456 N.E.2d 802 ; Furey v. Guardian Life Ins. Co., 261 AD2d 355, 356, 689 N.Y.S.2d 208. Extrinsic or parol evidence is not admissible to create an ambiguity in a written agreement which is otherwise clear and unambiguous. See; W.W.W. Assocs. v. Giancontieri, 77 NY2d 157, 565 N.Y.S.2d 440, 566 N.E.2d 639.
A contract is unambiguous if the language it uses has "a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion." Kasowitz, Benson, Torres & Friedman, LLP v. Duane Reade, 98 AD3d 403, 406, 950 N.Y.S.2d 8, affd., 20 NY3d 1082, 965 N.Y.S.2d 71, 987 N.E.2d 631, quoting , Breed v. Insurance Co. of N. Am., 46 NY2d 351, 355, 413 N.Y.S.2d 352, 385 N.E.2d 1280.
Here, the terms of the parties' agreement are found in three documents: (a) the General Pest Program Authorization to Charge Credit Card, (b) the Lifetime Warranty, and (c) the Invoice for the General Pest Program [Pl.Ex.6 and 19]. These documents were all issued by the defendant on September 30, 2016 at the time the parties' agreement was formed. Contrary to the Defendant's position, when read together, these documents do not clearly and unambiguously exclude the treatment of carpenter ants from the parties' agreement. Instead, these documents demonstrate that the parties agreed that treatment for carpenter ants was included in the contract. While the General Pest Program Credit Card Authorization form [Pl.Ex.6] does not list treatment of carpenter ants, the Defendant's invoice for the Plaintiff's purchase of the General Pest Program clearly does list the treatment of carpenter ants [Pl.Ex. 19]. As a result, there is a "reasonable basis for a difference of opinion" whether carpenter ant treatment was included in the parties' agreement. Kasowitz, Benson, Torres & Friedman, LLP v. Duane Reade, 98 AD3d 403, 406, 950 N.Y.S.2d 8, affd., 20 NY3d 1082, 965 N.Y.S.2d 71, 987 N.E.2d 631, quoting , Breed v. Insurance Co. of N. Am., 46 NY2d 351, 355, 413 N.Y.S.2d 352, 385 N.E.2d 1280. Parole evidence is, therefore, admissible to determine the parties' intent.
Based on the parties' conduct in enforcing the contract, it is clear that the parties intended their agreement to include the treatment of carpenter ants. Here, the defendant's invoices demonstrate that it repeatedly treated the Plaintiff's residence for carpenter ants. The carpenter ant treatment was performed at no additional cost to the Plaintiff, demonstrating that such treatment was included in the General Pest Program. If that service was not intended to be included in the parties' agreement, then the Defendant would have charged an additional amount for the repeated carpenter ant treatments. In fact, on May 30, 2017, the Defendant attempted to charge the Plaintiff an additional amount for the carpenter ant treatment [Pl.Ex.9], but that additional charge was dropped after the Plaintiff complained that these services were included in her agreement. Thus, this Court finds that the Defendant did agree to provide the Plaintiff with pest extermination services that included treatment for carpenter ants.
The Plaintiff proved, by a preponderance of the credible evidence, that she fully performed all of her obligations under the parties' agreement. The Plaintiff's only contractual obligation was to pay for the contracted services [Pl.Ex.6]. The Defendant did not dispute that the Plaintiff timely paid for the Defendant's services, including all of the treatments for carpenter ants [Pl.Ex.6-12].
The Plaintiff also proved, by a preponderance of the credible evidence, that the Defendant breached the agreement. Under the parties' agreement, the Defendant agreed that, by the end of the service program, "... we will eliminate the active infestation within the structure or we will continue to treat for free on a regular basis until the problem is solved." [Pl.Ex.6, pg. 1]. This Court accepts, as highly credible, the testimony of the Plaintiff that she advised Defendant's representative, Bryan Mull, that she was concerned about the prior infestation of carpenter ants and showed Mr. Mull the location in the attic where the carpenter ant infestation had previously been located. Mr. Mull supposedly treated the attic location for carpenter ants on September 30, 2016, the same date that the Plaintiff contracted for the Defendant's services. However, the Defendant failed to eliminate the carpenter ant infestation, which continued after the Defendant's September 30, 2016 treatment [Pl.Ex. 13, 14], and a nest of live carpenter ants was found by Hudson Valley Organic Pest Control after multiple carpenter ant treatments were applied by the Defendant [Pl.Ex. 13]. This nest was found in exactly the same location in the attic as the Plaintiff had pointed out to Mr. Mull as the previous area of carpenter ant infestation. Thus, the Defendant breached its agreement by failing to eliminate the carpenter ant infestation, which continued in the exact same location as was initially shown to the Defendant.
With respect to the Plaintiff's damages, she seeks the cost of the replacement of her entire roof in the amount of $6650.00 [Pl.Ex.25] and the cost incurred to eliminate the active carpenter ant infestation [Pl.Ex.13, 23]. Unfortunately, the Plaintiff's claims for these damages fail for two reasons.
First, the Plaintiff failed to prove, by a preponderance of credible evidence, that her roof was damaged by carpenter ants or, even if it was so damaged, that the damage required a complete replacement of her roof. The Plaintiff failed to produce any qualified expert testimony demonstrating this claim. The Plaintiff's roofing contractor was not called to testify and, in fact, no person testified to having found carpenter ant damage in the roof. Moreover, the invoice from Hudson Valley Organic Pest Control [Pl.Ex.13] describes that the carpenter ant nest was found in the foam insulation, not in the wooden roof members. The Hudson Valley Organic Pest Control invoice also describes the damage to the roof as being "roof rot" not carpenter ant damage [Pl.Ex.13]. Defendant's owner, Mr. Sankey, credibly testified that the photographic evidence of the damage to her roof showed roof rot, not damage from carpenter ants.
Second, and more importantly, the Plaintiff's claims are limited by the parties' express warranty. Here, the warranty limits a customer's damages to a maximum refund of $50.00 where, as here, the Defendant was unable to eliminate an active infestation [Pl.Ex.6, pg. 2]. Furthermore, the Warranty specifically excludes liability for "... any damage to the structure occurring before, during, or after a treatment, this includes but is not limited to any type of damage caused by pests ..." [Pl.Ex.6, pg. 2].
This Court cannot, under the guise of interpretation, rewrite the parties' contract to impose additional terms that are not contained in their warranty. See; Slamow v. Delcol , 174 AD2d 725, 727 (2d Dept. 1991), aff'd , 79 NY2d 1016 (1992) ; Weinberger v. Estate of Escort , 170 AD3d 919, 920 (2d Dept. 2019) ; Redbridge Bedford, LLC , 160 AD3d 176, 71 N.Y.S.3d 87 (2d Dept. 2018) (The fact that with the benefit of hindsight, a party believes that it had agreed to an unfavorable contractual term, does not provide courts with authority to rewrite the terms of a contract or to extricate parties from poor bargains). Rather, parties to contracts must ordinarily remain free to make the agreements they wish, on terms they deem satisfactory, no matter how unwise it might appear to a third party. 159 MP Corp. v. Redbridge Bedford, LLC , 160 AD3d 176, 190 (2d Dept. 2018), aff'd , 33 NY3d 353 (2019), rearg. den. , 33 NY3d 1136 (2019). If parties "are dissatisfied with the consequences of their agreement, ‘the time to say so [was] at the bargaining table.’ " Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 695, 636 N.Y.S.2d 734, 660 N.E.2d 415, quoting , Maxton Bldrs. v. Lo Galbo, 68 NY2d 373, 382, 509 N.Y.S.2d 507, 502 N.E.2d 184.
Thus, the Plaintiff is bound by the terms of the warranty that she accepted. Under those terms, the Defendant is not liable for structural damages to the Plaintiff's residence caused by the Defendant's failure to properly treat the carpenter ants. Moreover, the warranty limits the Plaintiff's claim to a refund in the amount of $50.00.
Based on the foregoing, this Court finds in favor of the Plaintiff on her claim of breach of contract and grants damages consistent with the parties' limited warranty in the amount of $50.00, together with interest thereon from the date of the Defendant's breach (i.e.; the date of the Defendant's last treatment on 10/5/2017)[Pl.Ex.11] in the amount of $9.42, together with costs and disbursements of this action in the amount of 36.00 for a total judgment in favor of the Plaintiff and against the Defendant in the amount of $95.42, and the Plaintiff shall have execution thereon.
R.T. Cornell Pharm., Inc. v. Guzzo , 135 AD2d 1000, 1001 (3d Dept. 1987) (holding that the fact that the party's salesperson was no longer an employee or agent does not preclude a finding of control as a matter of law (see, Chandler v. Flynn, supra, at 301, 489 N.Y.S.2d 289 ; Sachs v. Fumex Sanitation, 75 AD2d 595, 596, 426 N.Y.S.2d 817 ). Noticeably absent here is any explanation as to whether defendant's relationship with Mull had changed in such a manner that the witness might prove hostile or uncooperative (Wilson v. Bodian, supra, at 235, 519 N.Y.S.2d 126 ). Here, there was no explanation by the Defendant as to how or why Mr. Mull's employment was terminated or how his termination would suddenly make him an unfavorable witness. Without more, the mere fact that Mr. Mull had been terminated from his employment did not suddenly make him a hostile or unfavorable witness.