Tortorello v Rhodes

[*1] Tortorello v Rhodes 2012 NY Slip Op 52153(U) Decided on November 7, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., IANNACCI and LaSALLE, JJ
2011-2281 RO C.

Anthony Tortorello Doing Business as FULL FORCE LANDSCAPING, Respondent,Nov 7, 2012

against

William Rhodes and KAREN RHODES, Appellants.

Appeal from a judgment of the Justice Court of the Town of Stony Point, Rockland County (William F. Franks, J.), entered September 13, 2010. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $900 and dismissed defendants' counterclaim.

ORDERED that the judgment is modified by reducing the award in favor of plaintiff to the principal sum of $555.82; as so modified, the judgment is affirmed, without costs.

Plaintiff brought this small claims action to recover for the breach of a contract wherein the parties had agreed that plaintiff would supply and plant several trees, and provide landscaping services, for defendants, for the total sum of $2,400. Defendants counterclaimed, seeking to recover $750 in damages that they allegedly had incurred due to plaintiff's failure to perform on the landscaping agreement.

At a nonjury trial, plaintiff testified that, pursuant to a written landscaping agreement with defendants, he had purchased three Serbian Spruce trees and two Blue Spruce trees to plant in defendants' yard. While the written contract specified the type of trees to be planted, it did not specify the required height of the trees. However, both plaintiff and defendants testified that defendants had stated to plaintiff at the time the contract was agreed upon that the trees should match the existing tree line. According to plaintiff's testimony, when he arrived at defendants' [*2]property and began planting two Serbian Spruce trees and was preparing to plant the third, he was interrupted by defendant Karen Rhodes, who expressed her disapproval of the trees, claiming that the trees were of the wrong species and were significantly shorter than the trees on the property. Plaintiff maintained that the trees he had purchased were substantially similar to the trees on the property and that they would grow to be the same or similar height once they had matured. Nonetheless, defendants demanded that plaintiff remove the trees and return their $1,200 deposit. Plaintiff unilaterally terminated the agreement and refused to remove the two Serbian Spruce trees that he had planted as well as the unplanted Serbian Spruce, which he left on defendants' driveway. According to plaintiff, that unplanted tree was not returnable to the nursery from which he had purchased it because he had already prepared it for planting. Plaintiff ultimately returned later that day and removed the third unplanted Serbian Spruce tree.

According to Mrs. Rhodes' testimony, plaintiff showed her the trees before he planted them and she told him that they were not the right trees and he should not plant them. Defendants submitted an invoice for $150 from a different landscaping contractor that they had hired to move the two Serbian Spruce trees that plaintiff had planted to a different area on their property. In support of their counterclaim, defendants maintained that they had incurred $750 in damages due to plaintiff's failure to perform under the landscaping contract.

Following trial, the Justice Court awarded plaintiff the principal sum of $900 and dismissed defendants' counterclaim.

As both plaintiff and defendants testified that defendants had stated to plaintiff at the time the contract was agreed upon that the trees should match the existing tree line, plaintiff breached the contract by providing and planting trees that were too short and did not match the tree line. Nevertheless, defendants opted to retain the two trees that had been planted and, thus, plaintiff is only entitled to recover the reasonable value of the two Serbian Spruce trees he had provided and which defendants had retained. Consequently, plaintiff should be awarded the $249.99 cost per tree, plus tax.

We further find that defendants failed to make a prima facie case on their counterclaim to recover $750.

Defendants' argument, that plaintiff violated CPLR 4533-a by failing to produce or deliver a receipt 10 days prior to trial, is without merit, as the small claims procedure is governed by UJCA 1804, which does not have any such requirement.

Accordingly, in order to do substantial justice between the parties according to the rules and principles of substantive law (see UJCA 1807; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2005]), we modify the judgment by reducing the award in favor of plaintiff to the principal sum of $555.82.

Nicolai, P.J., Iannacci and LaSalle, JJ., concur.
Decision Date: November 07, 2012