Sefton v Hewitt

[*1] Sefton v Hewitt 2004 NY Slip Op 50580(U) Decided on June 18, 2004 Civil Court Of The City Of New York, Kings County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 18, 2004
Civil Court of the City of New York, Kings County

THOMAS SEFTON, Plaintiff,

against

ANTHONY HEWITT, Defendant .



37392/02



Matthew J. Harris, Esq., for the plaintiff.

Lawrence R. Gelber, Esq., for the defendant.

Manuel J. Mendez, J.

Plaintiff brings this action in breach of contract and architectural malpractice to recover damages in the amount of $25,000. Defendant counterclaims to recover the amount of $46,800 in quantum meruit, conversion, unjust enrichment and in breach of contract.[FN1]

The matter was tried by the court April 20 through April 22, 2004. Plaintiff presented one witness, Curry Rinzler, an expert in the field of architecture, and also testified on his behalf. Defendant presented two witnesses, Dan Heyden, an expert in the field of architecture; Gretel Schwartzott, defendant's girlfriend; and also testified on his behalf.

FACTS

Sometime before September 1999, plaintiff approached defendant to obtain his professional opinion and suggestions in the design and construction of a house which he wanted to build in Woodstock, New York. The parties' conversation culminated in an oral agreement which, according to plaintiff, provided for defendant to design the house, draw the necessary plans and supervise construction on site. For these services, defendant was to receive a flat fee of $14, 400. However, according to defendant, the oral agreement provided only for defendant to design the house and draw the plans for a fee of twelve percent of the total cost of construction. No on-site construction supervision was required.

On September 2, 1999, defendant submitted to plaintiff a "cost estimate" for a house of approximately 1900 square feet. The estimate contained an estimated cost of construction of $122, [*2]455 and allocated an "architecture/engineering fee of 10-15% of construction cost."[FN2] Defendant testified that at the time he submitted this estimate "it was a preliminary pricing just to establish an understanding of how we should proceed."[FN3]

The parties continued negotiations and in November 24, 1999, plaintiff tendered defendant the sum of $2,400 by check number 142. This check had written on it "Architectural services 1/6th total fee house on Violi road." On March 27, 2000, plaintiff tendered the sum of $2,400 by check number 147. This check had written on it "2nd of 6 payments for architectural services for house on Violi Road."

On March 27, 2001, plaintiff tendered the sum of $2,400 by check number 167. This check had written on it "3rd of 6 payments for architectural services for Violi Road."[FN4] Defendant cashed these checks without protest.

A project schedule dated January 14, 2001, well over one year after the original cost estimate and the first payment by plaintiff, delineates the time at which every payment was to be made. The third payment was due in February 2001; the fourth payment in March 2001; the fifth payment in May 2001 and the sixth and final payment at substantial construction completion in February 2002. This project schedule did not state the amount to be paid or whether it was being calculated as a flat fee or a percentage of construction cost.[FN5]

According to defendant, plaintiff was not satisfied with the design and drawings originally made and requested changes which increased the cost of construction. As a result of this, defendant requested immediate payment and an increase in fees. However, plaintiff refused to make additional payments until modified drawings were delivered and defendant refused to deliver these drawings before he received payment.

Subsequently, plaintiff retained the services of Curry Rinzler, an architect licensed in the field for over twenty years. Mr. Rinzler made a set of drawings which were to plaintiff's liking and acceptance. Plaintiff paid Mr. Rinzler a flat fee of $9,225 for these drawings.[FN6]

Mr. Rinzler was qualified as an expert in the field of architecture and testified on plaintiff's behalf. His testimony regarding the quality of the drawings and the cost estimate was of great importance to this Court. In his expert opinion, the drawings made by defendant are "reasonable within the standards of the profession."[FN7] "Mr. Rinzler is familiar with the means catalog (which was used by the defendant in estimating the cost of construction), has used it in the past and finds the estimate given by defendant to be close to the actual cost of construction for a house of this type, [*3]without interiors."[FN8]

Mr. Heyden, defendant's expert, is of the opinion that the use of the "means catalog" is within the reasonable standards of the profession.[FN9] He is also of the opinion that the drawings made by the defendant "met and exceeded professional standards."[FN10]

Plaintiff claims that defendant is in breach of their oral agreement because he refused to deliver the set of drawings when required and walked away from the job forcing plaintiff to retain another architect. Additionally, plaintiff claims defendant committed architectural malpractice because the drawings were defective. He alleges the cost estimate of the house was unrealistic because the actual cost of the house will be in excess of $500,000.

Defendant counters that the contract is void under the Statute of Frauds. Furthermore, in the event there was a contract, plaintiff breached it when he refused to make payment. Defendant also claims quantum meruit for the drawings and changes to the drawings for which plaintiff failed to pay.

The parties made certain admissions during the course of the trial. Plaintiff admitted making changes to the drawings in search of an amorphous "it." Defendant also admitted that at the time the parties parted their ways, the drawings were not fully completed. He also admitted never sending plaintiff a bill for services or notifying him of the fee increase due to the increase cost of the design.

There was no opinion, expert or otherwise, as to the reasonable compensation for an architect's services. There was also no expert opinion as to the reasonable number of hours required to make a design and set of drawings for this house.

LAW

Breach of Contract:

The formation of a contract requires at least two parties with legal capacity to contract, mutual assent to the terms of the contract and consideration (Restatement, Second, Contracts §§9, 12, 17; 1 Willinston, Contracts (4th Ed) 200-09, §3:2; 22 NY Jur. 2nd, Contracts §§11,13). Mutual assent is a meeting of the minds of the parties on all essential terms of the contract (Express Industries and Terminal Corp. v. New York State Dept. of Transportation, 93 NY2d 584, 693 NYS2d 857; Farago v. Burke, 262 NY 229, 186 NE 683; Arliss v. Herbert Brennon Film Corp., 230 NY 390, 130 NE 587; Henri Associates v. Sayony Carpet Co. Inc., 249 AD2d 63, 671 NYS2d 46; Spectrum Research Corp. v. Interscience, Inc., 242 AD2d 810, 661 NYS2d 871; Brands v. Urban, 182 AD2d 287, 587 NYS2d 698).

The manifestation of assent may take the form of written or spoken words (expressed contract) or of an act or failure to act (implied in fact contract), Miller v. Schloss, 218 NY 400, 113 NE 337; McIntosh v. Niederhoffer, Cross & Zeckhauser, 106 AD2d 774; 483 NYS2d 807; Joh Williams Costello & Associates, Inc. v. Standard Metals Corp., 99 AD2d 227, 472 NYS2d 325; Papa v. New York Telephone, 72 NY2d 879, 532 NYS2d 359).

A mere agreement to agree in which a material term is left for future negotiations is [*4]unenforceable (166 Mamaroneck Ave. Corp. v. 151 East Post Road Corp., 78 NY2d 88, 571 NYS2d 686; Joseph Martin, Jr. Delicatessen, Inc. v. Schumacher, 52 NY2d 105, 436 NYS2d 247; Tower Intl., Inc. v. Caledonian Airways Ltd. 1996 WL 68531). If the terms of the agreement are so vague and indefinite that there is no means by which such terms may be made certain, then there is no enforceable contract ( Deligiannis v. Pepsico, Inc., 757 F. Supp. 241 SDNY 1991). If an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract (Brands v. Urban, 182 AD2d 287; 587 NYS2d 698 (2nd Dept. 1992).

Consideration is some right, interest, profit or benefit accruing to one party or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other (Hamer v. Sidway, 124 NY 538, 27 NE 256; Holt v. Feingenbaum 52 NY2d 291, 437 NYS2d 654; Restatement Second Contracts §79; 22 NY Jur.2d Contracts §61).

To establish a claim for breach of contract under New York law, a plaintiff must prove:

1.) That an agreement existed between it and the defendant;

2.) What the respective obligations of the parties were;

3.) That plaintiff performed it's obligation under the agreement; 4.) That the defendant breached the agreement by failing to perform its obligation;

5.) That the plaintiff suffered damages as a result of the breach.

(Cleveland Wrecking Co. v. Hercules Construction Corp., 23 F. Supp. 2d 287, EDNY Sept. 29, 1998).

Where a contract does not have such essential terms as the time or manner of performance or price to be paid, the contract is unenforceable. (Cleveland Wrecking Co. v. Hercules Construction Corp., supra).

The facts demonstrate that the parties did not agree on the price or the manner of performance. While plaintiff believed the price to be $14,400 based on a flat fee, the defendant believed the price to be a percentage of the construction cost. While plaintiff believed the defendant was to supply the design sets and provide on-site supervision, defendant believed his only obligation was to provide the set of drawings. There was no agreement on material elements of the contract; therefore, there was no enforceable contract (166 Mamaroneck Ave. Corp. v. 151 East Post Road Corp., Joseph Martin, Jr. Delicatessen, Inc. v. Schumacher, supra). Since there was no enforceable contract, a necessary element to be proven in a breach of contract claim, there was no breach of contract (see Cleveland Wrecking Co. v. Hercules Construction Corp., supra).

STATUTE OF FRAUDS:

The Statute of Fraud provides that an agreement will not be recognized or enforced if it is not in writing and subscribed by the party to be charged when the agreement by its terms is not to be performed within one year from its making or is not completed before the end of a lifetime, (General Obligation Law §5-701(a)(1)). An agreement for the design of a house does not fall within the Statute of Frauds as a contract for the sale of an interest in real property. (Gallo v. Brengard, 1 AD2d 840, 148 NYS2d 790; 56 NY Jur., Statute of Frauds, §103; McCaffrey v. Strainer, 81 AD2d 977, 439 NYS2d 773 (3rd Dept 1981)). If the oral agreement can be fully performed within one year, it will not be void under the Statute of Frauds (UK Cable Ventures, Inc. v. Bell Atlantic Investments, 232 AD2d 294, 648 NYS2d 564 (1st Dept. 1996); Clement S. Crystal, Inc. v. Denberg, 237 NYS2d 102 (1962); Nat Nal Service Stations v. Wolf, 304 NY 332, 107 NE2d 473; Ward v. [*5]Hasbrouck, 169 NY 407, 62 NE 434; Warren Chemical & Mfg., Co. v. Hollbrook, 118 NY 586, 23 NE 908). The defendant has the burden of establishing the defense of the statute of frauds (Clements S. Crystal Inc. v. Denberg, supra).

In the event the Court were to have found the existence of a contract, this contract would have been found void under the Statute of Frauds. The defendant sustained its burden of establishing its defense of the statute of frauds by a sufficient showing that the contract was not capable of performance within a year. The parties testified that the date of commencement of the agreement was in late 1999; however in March 2001, when plaintiff made the third payment over one year after commencement, the agreement had not yet been fully performed. Furthermore, the "project schedule" admitted in evidence as defendant's "C" provided that final payment on the contract would be made in February 2002, almost three years from the oral agreement's inception. Where the alleged oral agreement requires the balance of the contract price to be paid at a date beyond one year, the contract can not be performed within one year and is therefore void under the Statute of Frauds (A. Aversa Brokerage, Inc. v. Honig Insurance Agency, Inc., 249 AD2d 345, 671 NYS2d 135 (2nd Dept. 1998); North Shore Bottling Co., v. Schmidt & Sons, 22 NY2d 171, 292 NYS2d 86, 239 NE2d 189; Weitz v. Smith, 231 AD2d 518, 647 NYS2d 236; Amico v. Graphic Arts Leasing, 231 AD2d 596; 647 NYS2d 815; Bayside Health Club v. Weidel, 170 AD2d 474, 565 NYS2d 560).

Part Performance:

Under New York Law, the Statute of Frauds requires complete performance of the contract within one year and not just a part thereto (Shaftel v. Dadras, 39 F Supp2d 217 (EDNY 1999); CRON v. Hargro Fabrics, Inc. 670 NYS2d 973 (1998)). The Doctrine of Part Performance may be invoked to remove an oral agreement from the operation of the Statute of Frauds only where plaintiff's actions, viewed alone, can be characterized as unequivocally referable to the agreement alleged (Anostario v. Vicinanzo, 59 NY2d 262, 463 NYS2d 409 (CA 1983); Burns v. McCormick 233 NY 230; Cooper v. Shube, 86 AD2d 62, 449 NYS2d 32; Steele v. Delverde, 242 AD2d 414, 662 NYS2d 30 (1st Dept. 1997). The facts do not support plaintiff's position. It can not be said that his actions, when viewed alone, unequivocally refer to the agreement alleged. At most, his actions may be viewed as payment for services at the time they are rendered and not for the establishment of a contract for the design of a house with on-site construction supervision.

Malpractice:

Plaintiff's evidence is insufficient to prove that defendant committed architectural malpractice. His own expert opined that the use of the means catalog was good and accepted practice. He also opined that the design drawings were reasonable within the standards of the profession. There was no expert testimony indicating defendant deviated from what is considered to be good and accepted practice in the profession (Pipe Welding Supply Co., Inc. v. Haskell, 61 NY2d 884, 474 NYS2d 472 (1984); 530 East 89 Corp. v. Unger, 43 NY2d 776, 402 NYS2d 382).

Quantum Meruit, Unjust Enrichment, Conversion:

In the absence of a contract, a party may recover in quantum meruit if the party provided services and materials under circumstances implying an understanding by both parties that the provider would be paid (Shapira v. United Medical Services, Inc., 15 NY2d 200, 257 NYS2d 150; Harmon v. Alfred Peats Co., 243 NY 473; McKeon v. Van Slyck, 223 NY392; Wells v. Dent, 4 AD2d 307, 164 NYS2d 646 (4th Dept. 1957); Callender v. Fieldman, 252 AD2d 468, 676 NYS2d 152 (1st Dept. 1998). Quantum Meruit is an equitable doctrine that allows the party claiming it to [*6]recover on a partly performed contract only the reasonable value of the work performed and materials furnished (Kokomo Strawboard v. Inman, 134 NY 92; Meyers v. Coxsackie 139 AD2d 855, 527 NYS2d 584; Patten v. Mil-cal Co., 26 AD2d 497, 275 NYS2d 674; Ralie v. Peerless American Products Co., 192 AD2d 506, 182 NYS2d 721).

To prevail on a cause of action in Quantum Meruit, the party claiming it must prove 1.) Performance of services in good faith, 2.) Acceptance of the services by the person for whom they are rendered, 3.) An expectation of compensation, and 4.) The reasonable value of the services performed (Precision Foundations v. Ives, 4 AD3d 589, 2004 Slip Op 00560, 772 NYS2d 116; citing Clark v. Torian, 214 AD2d 938, 625 NYS2d 370; Paloangeli v. Thaler, 187 AD2d 881, 590 NYS2d 316).

What is the reasonable value of the services rendered, in this situation, needs to be established through testimony of expert witnesses, not the self serving assertions of the party claiming quantum meruit (Green v. Messing, 236 AD 107, 258 NYS 82 (1st Dept. 1932); Hunter v. Vicario, 146 AD 93, 130 NYS 625 (1st Dept. 1911); George Colon Contracting v. Morrison, 162 NYS2d 841; Robert v. Berlanti Dev. Corp., 250 NYS2d 154).

There was no testimony, expert or otherwise, as to what the "reasonable value" of defendant's services; or as to the reasonable number of hours required to make the changes requested by plaintiff. Mr. Rinzler testified that when he made changes to a design he wouldn't make a "new sketch." "Since he worked with a computer , he would alter the model that is in the computer."[FN11] The conclusion to be reached from this testimony is that it is not required nowadays to spend hundreds or thousands of hours making a new sketch whenever a client is dissatisfied with the design. If the defendant saw it fit to spend his time in this manner he does so at his own peril. Furthermore, the fact that plaintiff requested these changes is an indication of his dissatisfaction. Moreover, it also shows he did not accept the services rendered by defendant. In addition, the defendant testified that he did not give plaintiff all the sets of drawing as they were not yet fully completed. The stonewall construction set which plaintiff obtained after a meeting with defendant in August was obtained after the third payment was made. After those plans were in plaintiff's possession no additional work was required from the defendant.[FN12] As such, defendant failed to establish that he was entitled to recover on quantum meruit. He was paid for the work he performed for the plaintiff, therefore, plaintiff did not convert the stonewall construction set or unjustly enriched himself because he had paid for them in advance.

CONCLUSION

This Court finds that there was no enforceable contract. There was no agreement as to price, time, and manner of performance. As such, plaintiff failed to establish an essential element of a breach of contract claim and his claim for breach of contract is dismissed. There was no malpractice, plaintiff failed to establish that the use of the means catalog was not good and accepted architectural practice. Plaintiff also failed to establish that the design sets were defective and not within the reasonable standards of the architecture profession, therefore, plaintiff's claim for architectural [*7]malpractice is also dismissed.

The defendant did not prove that plaintiff was unjustly enriched or converted the stonewall constructions plans because plaintiff paid for the plans before he obtained them and only got what he paid for. The defendant did not prove that he is entitled to recover in quantum meruit. He failed to establish the reasonable value of his services. Furthermore, plaintiff did not accept his service. Therefore, defendant's counter claims for quantum meruit, unjust enrichment, and conversion are respectively dismissed.

This constitutes the decision and judgment of this Court.

Dated: June 18, 2004

Manuel J. Mendez

J.C.C. Footnotes

Footnote 1:Pleadings of respective parties: complaint, answer, and counterclaim.

Footnote 2:Plaintiff's #1 in evidence - cost estimate.

Footnote 3:Defendant's testimony, p.33, Lines 2-4.

Footnote 4:Plaintiff's 3, 4, and 5 in evidence.

Footnote 5:Defendant's "C" in evidence - project schedule.

Footnote 6:Plaintiff's 8 in evidence - Rinzler's bill.

Footnote 7:Transcript, Rinzler's testimony, p. 23, Lines 3-6.

Footnote 8:Transcript, Rinzler's testimony, p. 19, Line1 through p. 22, Line 4.

Footnote 9:Transcript, Heyden's testimony, p. 15 Lines 12-20.

Footnote 10:Transcript, Heyden's testimony, p. 8, Lines 1-11

Footnote 11: Rinzler's testimony, p. 26, Lines 25 to p. 27, Line 9.

Footnote 12:Plaintiff testified he subsequently retained the services of Curry Rinzler to complete the design of the house.