Opinion
2007-1674 RO C.
Decided on January 8, 2009.
Appeal from a judgment of the Justice Court of the Town of Clarkstown, Rockland County (Howard Gerber, J.), entered February 1, 2007. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,000 and dismissed the counterclaim.
Judgment reversed without costs and matter remanded to the court below for a new trial.
PRESENT: RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ.
In the instant small claims action to recover for breach of contract, the evidence adduced at trial established that defendant borrowed the sum of $5,500 from plaintiff and signed an agreement wherein she agreed to repay plaintiff said amount plus interest, for a total of $7,480, by making monthly payments of $124.66 commencing April 1, 2000 and ending March 1, 2005. The agreement contained a clause which provided that any modification of the agreement had to be in a writing signed by the parties. It is undisputed that defendant made payments totaling $4,245. Consequently, according to plaintiff, she is still owed the sum of $3,235, but she only seeks to recover $3,000, the monetary jurisdictional limit of the court. Defendant counterclaimed to recover $2,800 for salon services which she allegedly provided to plaintiff.
At trial, defendant testified that plaintiff orally agreed that instead of being paid in cash for the outstanding balance owed, she would accept hair services at defendant's salon. Defendant further testified that plaintiff in fact received hair services for 20 months. Plaintiff testified that she made no such agreement with defendant and that she did not receive monthly hair services at defendant's salon for 20 months. However, she acknowledged that she agreed to deduct from the balance due her the cost of three haircuts and a highlight which she received from defendant. After trial, the court awarded plaintiff the principal sum of $3,000 and dismissed the counterclaim. In its decision, the court stated that since the written agreement specifically provided that it could only be amended in writing and there was never a written modification of the agreement, it was constrained by the written agreement.
At the outset, we note that where a contract expressly provides that it can only be modified in writing, and "the only proof of an alleged [modification] is the oral exchanges between the parties, the writing controls" ( Rose v Spa Realty Assoc., 42 NY2d 338, 343; see General Obligations Law § 15-301). However, contrary to the court's determination, an oral modification will be enforced where there is part performance that is unequivocally referable to the modification ( see Rose, 42 NY2d at 343-344; Richardson Lucas, Inc. v New York Athletic Club of the City of New York, 304 AD2d 462). Indeed, plaintiff acknowledged the existence of an agreement to deduct the cost of three haircuts and one highlight from the amount owed her, yet the court below failed to deduct even the cost of said services from the outstanding balance which it found to be due.
Since the court did not determine whether plaintiff actually received hair services for 20 months at defendant's salon and, if so, whether such performance was unequivocally referable to an agreement to credit the cost thereof against the balance due, substantial justice (UJCA 1804, 1807) requires that the judgment be reversed and the matter remanded for a new trial to determine said issues. We note that in the event the court finds that defendant provided plaintiff with salon services, but that such performance was not unequivocally referable to a modification of the promissory note, defendant may nevertheless be entitled to recover the cost of the salon services which she allegedly rendered to plaintiff, provided defendant establishes that she performed the services in good faith, the services were accepted by plaintiff, the parties expected that the services would be compensated, and the reasonable value of the services ( see e.g. Tesser v Allboro Equip. Co., 302 AD2d 589).
Rudolph, P.J., Molia and Scheinkman, JJ., concur.