Slomin's, Inc. v Andre

[*1] Slomin's, Inc. v Andre 2009 NY Slip Op 52326(U) [25 Misc 3d 137(A)] Decided on November 17, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 17, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MOLIA, J.P., LaCAVA and IANNACCI, JJ
2008-315 S C.

Slomin's, Inc., Respondent,

against

Amensia Andre, Appellant.

Appeal from a judgment of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered November 5, 2008. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $908.92.

ORDERED that the judgment is reversed without costs and the matter is remitted to the District Court for a new trial limited to plaintiff's causes of action based on the contract for the sale and installation of an electronic security system.

Plaintiff commenced this action to recover sums allegedly due it under two separate contracts with defendant: one for the sale and installation of an electronic security system, which was to be installed in defendant's house and hooked up through defendant's telephone lines (the Sales Agreement), and the second for the monitoring of the security system (the Monitoring Agreement). The contracts were entered into, and installation was begun, in April 2005, while defendant's house was still under construction and before a telephone line had been installed. While there was differing testimony regarding the issue of fault, it was established at the nonjury trial that installation of the security system was never completed: the system was never hooked up to a power supply or to defendant's telephone line, and the windows were never wired. Without making a finding as to which party was responsible for the failure to complete the hook-up of the alarm system, the District Court concluded that, because plaintiff had never finished the hook-up of the system and had never performed any monitoring of the system, plaintiff could not bill defendant for monitoring charges. Plaintiff has not appealed the dismissal of the causes of action relating to the Monitoring Agreement. Making specific reference to paragraph 13 of the Sales Agreement, the District Court did, however, award plaintiff the principal sum of $908.92, which was stated to represent the equipment cost plus legal fees. A judgment was entered awarding plaintiff the principal sum of $908.92. Defendant appeals therefrom, arguing, in effect, that plaintiff never completed installation of the alarm system, and that she should not be compelled to pay for an inoperative system.

In this contract action, it was incumbent on plaintiff, which bore the burden of proof (see e.g. Siebert v Dermigny, 60 AD3d 526 [2009]; Prince, Richardson on Evidence § 3-210 [Farrell 11th ed]), to establish the existence of an agreement between the parties, consideration, performance by the plaintiff, breach by the defendant, and damages (Alarm Monitoring Corp. v D'Agostino Supermarkets, Inc., 21 Misc 3d 1148[A], 2008 NY Slip Op 52550[U] [2008], citing [*2]Furia v Furia, 116 AD2d 694 [1986]). Paragraph 13 of the Sales Agreement provides, in pertinent part:
"13. LEGAL ACTION: Buyer shall have no obligation to pay purchase price provided Buyer enters into with SLOMIN'S and completes performance without default of SLOMIN'S Standard Central Office Monitoring Contract. In the event Buyer defaults in the monitoring contract Buyer shall be liable for (60) sixty percent of the purchase price herein from the date hereof. In the event SLOMIN'S institutes legal action to recover any amounts owed by Buyer to SLOMIN'S hereunder, the parties agree that the amount to be recovered, and any judgment to be entered, shall include interest at the rate of 1 ½% per month from the date payment is due. Should SLOMIN'S prevail in any litigation between the parties Buyer shall pay SLOMIN'S legal fees . . ."

Under this provision, defendant's obligation to make payments under the Sales Agreement could only be triggered if defendant defaulted in payments due under the Monitoring Agreement. Defendant's duty to pay plaintiff's legal fees depended upon plaintiff prevailing in litigation brought under the same paragraph. However, the District Court determined that defendant had no duty to make payments under the Monitoring Agreement, which conclusion has not been challenged by plaintiff.

Defendant's duty to make payments under paragraph 13 of the Sales Agreement was thus, technically, never triggered. However, it is a fundamental precept of contract law that mutual duties are imposed upon each of the parties to a contract not to prevent performance by the other. "To the extent that a contracting party impliedly obligates itself to cooperate in the performance of its contract, the law will not permit it to take advantage of an obstacle to performance that it had created or that lies within its power to remove" (23 Williston on Contracts § 63.26 [4th ed]; see generally Uniform Commercial Code § 2-609 [1]; O'Neil Supply Co. v Petroleum Heat & Power Co., 280 NY 50, 56 [1939]).

Here, since each party faulted the other for the incomplete installation of the alarm system, it was incumbent upon the District Court to determine whose fault it was that installation of the system was not completed. If it was plaintiff's fault that installation was not completed, under the terms of the Sales Agreement, plaintiff should not have been awarded damages and [*3]the case should have been dismissed; however, if the failure of completion was defendant's fault, an award of damages to plaintiff was appropriate. The District Court failed to make such determination.

We accordingly reverse the judgment and remit this case to the District Court for a new trial limited to plaintiff's causes of action relating to the Sales Agreement.

Molia, J.P., LaCava and Iannacci, JJ., concur.
Decision Date: November 17, 2009