Opinion
No. 2011–749 K C.
2012-08-24
Nichole SMITH–NEDD, Respondent, v. CRYSTAL MANOR, INC. and Farragut Manor, Inc., Appellants.
Present: PESCE, P.J., WESTON and ALIOTTA, JJ.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered January 27, 2010. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, awarded plaintiff the principal sum of $5,791.50.
ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and the matter is remitted to the Civil Court for a new trial limited to the issue of damages to be awarded on plaintiff's cause of action.
Insofar as is relevant to the appeal, the facts are as follows: Plaintiff commenced this action to recover the sum of $10,000, representing a portion of the money she had paid to defendant Crystal Manor, Inc. (Crystal Manor) for her wedding reception. At a nonjury trial, plaintiff testified, and defendants did not dispute, that Crystal Manor had contracted with plaintiff to provide a hall, beverages, and food for a cocktail hour and a meal to be served at plaintiff's wedding reception, for a total cost of $15,000, which sum plaintiff had paid in full prior to the reception. Plaintiff and two other individuals who had attended the reception testified, among other things, that the food served at the reception was undercooked and partially inedible and that it had been served so late that some of the wedding guests had departed before being served. Plaintiff also stated, and one of her witnesses confirmed, that plaintiff had provided Crystal Manor with unassembled pieces of her wedding cake, in adequate quantities, which Crystal Manor was to assemble and serve to the guests, but that Crystal Manor failed to serve many of the guests the cake. Crystal Manor's witness contested plaintiff's allegations concerning the inadequacy of the food and services provided at the reception. Following trial, the Civil Court, based on its evaluation of the credibility of the testimony offered by the parties, ruled that defendants had partially breached the parties' contract by providing unsatisfactory food and services, and awarded judgment to plaintiff in the principal sum of $5,791.50.
A contract between a caterer and its customer is a hybrid sale of goods and services ( see Fallsview Glatt Kosher Caterers, Inc. v. Rosenfeld, 7 Misc.3d 557 [Civ Ct, Kings County 2005]; see also Milau Assoc. v. North Ave. Dev. Corp., 42 N.Y.2d 482 [1977] ). As a contract for goods, a catering contract is subject to the warranty of merchantability of the Uniform Commercial Code that goods be fit for the ordinary purposes for which they are used ( seeUCC 2–314[1], [2][c], and Official Comment 5; 18 Lord, Williston on Contracts § 52:89 [4th ed] ). The Civil Court's determination, in effect, that Crystal Manor had violated the implied warranty of merchantability by serving food which was not reasonably fit for consumption, was premised on an assessment of the witnesses' credibility, which we find no reason to disturb ( see McGuirk v. Mugs Pub, 250 A.D.2d 824 [1988] ). Likewise, the court's finding, that the services provided by Crystal Manor were inadequate, is sufficient to support a finding of liability against Crystal Manor to the extent that it was premised on Crystal Manor's breach of so much of its contract as was to provide services to plaintiff.
Defendants contend that the Civil Court improvidently exercised its discretion in denying defendants' request for a brief adjournment in order to allow witnesses who were not present in the courtroom, but were on “standby,” to testify. However, defendants have failed to indicate how the additional testimony they hoped to adduce would add to the court's understanding of the underlying facts of the case or would be noncumulative. Under the circumstances, we conclude that the Civil Court did not commit reversible error with respect to its denial of an adjournment ( see Rodriguez v. New York City Tr. Auth., 81 AD3d 804 [2011];Woody v. Foot Locker Retail, Inc., 79 AD3d 740 [2010];see alsoCPLR 2002).
Defendants further assert that reversal is warranted because of the lack of a basis for the amount awarded plaintiff. To the extent that defendants provided defective food, plaintiff was entitled to recover the difference between the value of the food provided and the value of the food as it was impliedly warranted ( seeUCC 2–314, 2–714[2] ). Similarly, to the extent that plaintiff sought damages based on breach of that portion of the catering contract which was for services, she was entitled to recover the difference in the value between the services contracted for and those delivered ( see36 N.Y. Jur 2d, Damages § 37; see also Griffin–Amiel v. Terris Orchestras, 178 Misc.2d 71, 78 [Yonkers City Ct 1998] ). However, since the record is devoid of any proof establishing a basis for the Civil Court's calculation of the sum of $5,791.50 awarded plaintiff, the judgment, insofar as appealed from, is reversed and the matter is remitted to the Civil Court for a new trial limited to the issue of damages on plaintiff's cause of action.
As defendants have raised no issue on appeal with respect to the finding of liability on the part of defendant Farragut Manor, Inc., we do not reach the propriety of the Civil Court's finding of liability as to that defendant. PESCE, P.J., and ALIOTTA, J., concur.
WESTON, J., dissents in part and concurs in part in a separate memorandum.
WESTON, J., dissents in part and concurs in part and votes to reverse the judgment and order a new trial before a different judge in the following memorandum:
While I agree with the majority that there should be a new trial, it should not be limited to the issue of damages. This action involves an attempt by plaintiff to recover monies paid to a reception hall for her wedding reception. In determining whether there was substantial performance under the contract, assessing the credibility of the parties is pivotal. Plaintiff was permitted to present her entire case in chief, defendants were not. The court denied defendants a short continuance to allow their witnesses to appear, one of whom was en route to the courthouse at the time of the application. In addition to plaintiff's testimony, plaintiff's case rested upon the hearsay-riddled testimony of her mother and sister to support her claim of inadequate food service during the reception. They all concurred that approximately 50 guests had failed to attend the reception. Notwithstanding plaintiff's having over 300 guests at the reception, not a single disinterested witness testified on plaintiff's behalf. According to defendants' principal's sole testimony, on the night of the affair defendants did not receive any complaints about the quality of the food. Rather, two days after the reception, plaintiff requested a refund for the “no-show” guests.
Although requests for continuances are left to the sound discretion of the court ( see Nieves v. Tomonska, 306 A.D.2d 332 [2003];Evangelinos v. Reifschneider, 241 A.D.2d 508 [1997] ), it is an improvident exercise of discretion to deny a continuance where the application is reasonable, not made for purposes of delay, and where the need for an adjournment does not result from the failure to exercise due diligence ( see Noble Thread Corp. v. Noble Group Corp., 46 AD3d 778 [2007];Hughes v. Webb, 40 AD3d 1035 [2007];Zysk v. Bley, 24 AD3d 757 [2005];Conde v. Williams, 6 AD3d 569 [2004];Romero v. City of New York, 260 A.D.2d 461 [1999] ). The denial of defendants' request for a brief continuance for the appearance of witnesses, I find, was an improvident exercise of discretion and therefore a new trial should not be limited to the issue of damages. The manager who managed the affair that night was on his way to the courthouse, and two other witnesses from that evening, who were at their private places of employment, were on standby and available to testify in the afternoon.
A review of the court file indicates that this was only the second time this case was on the calendar. The first adjournment was for plaintiff to provide a bill of particulars, which was supplied days before the trial. There is no apparent reason why the case would be marked final under these particular circumstances. The witnesses that defendants sought to have testify were present on the night of the affair and, with a relatively brief adjournment, would have been available to testify (Notrica v. North Hills Holding Co., LLC, 43 AD3d 1119 [2007];Byrnes v. Varlack, 17 AD3d 616 [2005];Matter of Shepard, 286 A.D.2d 336 [2001] ).
Based upon the record, in my opinion, not only should a new trial be ordered, but the matter should be remitted and reassigned to a different judge for trial, to ensure that both sides receive a full and fair opportunity to be heard. The court's erroneous claim that defendants admitted to breaching the contract is unsubstantiated by the record. Moreover, the record is replete with instances where it appears that the court was exhibiting extreme hostility towards the defense. Thus, this case should be reassigned.