DeGeorge v Nucci
Annotate this CaseDecided on March 22, 2005
Civil Court of the City of New York, Richmond County
VINCENT DEGEORGE, Plaintiff,
against
ED NUCCI, Defendant.
EDWARD NUCCI, Plaintiff, -against-
against
VINCENT DEGEORGE, Defendant.
SC 1053/04
Plaintiff/Defendant Vincent DeGeorge:Pro Se
Defendant/Plaintiff Edward Nucci:Sgarlato & Sgarlato, PLLC
By: Richard Sgarlato, Esquire
1444 Clove Road Staten Island, New York 10301
(718) 273-7900
Catherine M. DiDomenico, J.
These cases were consolidated for joint trial by Judge McMahon and tried before this Court on February 15, 2005. At the trial, Plaintiff/Defendant Vincent DeGeorge proceeded pro-se. Defendant/Plaintiff Edward Nucci was represented by legal counsel. Mr. DeGeorge testified on his own behalf and called a friend, Ms. Sandy Lyon, as a witness. He also submitted documents (Pl. Exs 1-6). Mr. Nucci testified on his own behalf and submitted documents (Def. Exs. A-J).
The Court makes the following findings of fact and conclusions of law based on the testimony and evidence adduced at trial.
Both actions concern the premises located at 432 Hunter Avenue, Staten Island, New York, ("Premises"). Mr. DeGeorge claims he entered into an agreement with Edward Nucci whereby Mr. Nucci would buy the Premises and Mr. DeGeorge would make certain improvements to the house located thereon. At some future unspecified time, when Mr. DeGeorge was employed and able to secure a mortgage, Mr. Nucci would convey the premises to [*2]Mr. DeGeorge at a price totaling "what Mr. Nucci paid", "plus a little more". This alleged agreement was never reduced to writing. Mr. Nucci purchased the Premises from third party owners in March 2002.
When asked why Mr. Nucci would agree to sell this home to him for less than its market value, Mr. DeGeorge stated that Mr. Nucci agreed to do it as a charitable gesture, notwithstanding that Mr. Nucci was neither Mr. DeGeorge's friend, nor a relative. From the time of the purchase of the Premises through the date of trial, Mr. DeGeorge (who claimed to be a welder) has been unemployed. Mr. Nucci has been a licensed real estate broker for over 13 years. He is also a licensed builder and has built and sold hundreds of homes.
In late October 2002, Mr. DeGeorge moved his mobile home onto the Premises and began working on the existing house. Mr. Nucci claims that Mr. DeGeorge never had permission to enter the premises. However, the evidence at trial establishes that, at the very least, Mr. Nucci was aware of Mr. DeGeorge's occupancy of the Premises for approximately 18 months before Mr. Nucci called the police to have him removed. This occurred in late April 2004 when Mr. Nucci went to the local precinct for assistance, after which the police entered the Premises and told Mr. DeGeorge to leave. Mr. DeGeorge vacated the Premises within 24 hours thereafter.
Mr. Nucci claims he delayed some 18 months after Mr. DeGeorge first moved his trailer onto the property to attempt to have Mr. DeGeorge removed because he was "afraid" of him. However, the only specific examples cited by Mr. Nucci as evidence of this alleged fear occurred on April 28 and April 29, 2004, at about the same time he went to the police.
In addition, in March 2004, Mr. Nucci entered into an alleged "brokerage agreement" with Mr. DeGeorge which purported to grant Mr. DeGeorge a $6,000.00 commission, if and when, the Premises were sold to a "Future Buyer". Clearly, if Mr. Nucci was fearful that Mr. DeGeorge would do him bodily harm (and held this belief for any length of time), he would not arrange for Mr. DeGeorge to come to his office and sign this document. Rather, logic would suggest that Mr. Nucci would stay as far away from Mr. DeGeorge as possible for his own safety. Accordingly, after listening to the testimony of Mr. Nucci and observing his demeanor, this Court does not find credible Mr. Nucci's claim that fear was the reason he did not seek the removal of Mr. DeGeorge sooner.
The evidence at trial establishes that Mr. DeGeorge was doing work on the Premises during his stay there and this Court finds that, notwithstanding Mr. Nucci's denials, he knew of Mr. DeGeorge's activities. The Court finds credible the testimony of Mr. DeGeorge and his witness, that Mr. Nucci often drove by the Premises and was fully aware of the work Mr. DeGeorge was doing there. Indeed, Mr. DeGeorge credibly testified that on one occasion Mr. Nucci directed that dirt from another one of Mr. Nucci's construction sites be dumped at the Premises and directed Mr. DeGeorge to dispose of it at the site. It appears that this ultimately led to the issuance of a Department of Environmental Protection violation.
However, Mr. DeGeorge has not proven that he had a contract with Mr. Nucci to improve the Premises; what specific work was to be performed; or the compensation to be given Mr. DeGeorge in exchange therefore. Mr. DeGeorge's explanation, that he was doing work (and arranging for others to do work there) because he believed the house would one [*3]day be his at some undefined reduced market price, is not credible and was not proven at trial.
When it became clear to Mr. DeGeorge that Mr. Nucci did not intend to sell him the Premises for any price other than its fair market value, he commenced an action (Index No. 699/04) against Mr. Nucci in the Small Claims Part of this Court on April 30, 2004 to recover monies arising out of nonpayment of services rendered. Specifically, he sought compensation for work performed and "materials" used at the Premises . (Def. Ex. I). On the May 27, 2004 return date, both parties appeared pro-se and agreed in writing to go before an arbitrator whose decision would be final with no right to appeal. After arbitration, Mr. DeGeorge was awarded $4,097.87, which Mr. Nucci paid.
On July 1, 2004, Mr. DeGeorge commenced the present small claims case (Index No. SCR 1053/04) against Mr. Nucci. While conceding that this case also arises out of work allegedly performed at the Premises and expenses incidental thereto, Mr. DeGeorge claims that he divided his claim into two cases in order to comply with the $5,000.00 jurisdictional limit of the Small Claims Part of this Court. Additionally Mr. DeGeorge purports to seek recovery for damage done to a generator and to his mobile home; for damage or removal of his girlfriend's three year old refrigerator; and for reimbursement of an electric bill reflecting charges incurred in the course of working at the Premises. At the trial Mr. DeGeorge was to allowed to amend his answer in the consolidated civil court action to assert a counterclaim alleging that he is entitled to a broker's commission in the amount of $6,000.00 arising out of Mr. Nucci's purchase of the Premises. With respect to his civil court action, Mr. Nucci sues Mr. DeGeorge for trespass; for theft of a generator; and for civil assault.
During trial, Mr. Nucci orally moved to dismiss Mr. DeGeorge's claim for monies due for work performed (i.e. the small claims case) on the ground this issue was fully decided in Mr. DeGeorge's favor in the prior small claims case; and to dismiss the claim for the brokerage commission arguing Mr. DeGeorge is barred from recovering same as he is not (and never has been) a licensed real estate broker. The Court reserved decision on this motion. The underlying claims forming the basis for the motion are addressed and decided herein.
I. The Small Claims Case.
A. Plaintiff's Small Claims Complaint Must be Dismissed.
Where a final judgment is entered in an action, plaintiff's claim is extinguished with respect to "all or any part of the transaction, or series of connected transactions, out of which the transaction arose." Zarcone v Perry, 78 AD2d 70 (2d Dept 1980). The prohibition against claim splitting is to "prevent harassment and vexatious litigation". Pfeiffer v Allstate Insurance Co., 136 AD2d 532 (2d Dept 1988) (res judicata splitting rule requires that with respect to a single matter, there should be only one lawsuit). The policy against relitigation of adjudicated disputes is "strong enough generally to bar a second cause of action even where further investigation of the law or facts indicates that the controversy has been erroneously decided, whether due to oversight of the parties or error of the Courts." Matter of Reilly v Reid, 45 NY2d 24, 26 (1978). Although a claimant may elect to reduce a claim of greater value in order to sue in the Small Claims Part, this decision [*4]waives the excess value of the claim. Jerome v Faby, NYLJ, February 4, 1998, at 32 (Mount Vernon City Court) (where plaintiff split cause of action into two cases to avail himself of the small claims jurisdiction, subsequent claim was barred for improperly splitting the cause of action); see also Siegel, NY Prac §443, at 716 [3d ed] ("The splitting doctrine in New York is largely confined to instances in which a plaintiff with a single money claim omits part of what is due when she sues. The part omitted is waived.").
Here, Mr. DeGeorge is barred by the judgment rendered in the prior small claims case from obtaining the relief he seeks. In the prior case, Mr. DeGeorge asserted a claim for work he allegedly performed at the Premises, and was awarded a judgment in the amount of 4,097.87 for his alleged services, which has been fully satisfied. Mr. DeGeorge now sues Mr. Nucci again for reimbursement for materials used in the work he already recovered for in the prior case; for electricity charges that he allegedly incurred in the course of the work; for damage to a generator he used while doing the work; and for damage to his trailer and to his girlfriend's refrigerator used at the premises.
It is obvious that all these claims either were (or could have been litigated) in the prior proceeding had Mr. DeGeorge not elected to file his claim in the Small Claims Part of the Civil Court with its limited monetary jurisdiction. Having made that election, he is barred from pursuing this second action against Mr. Nucci arising out of the same facts and circumstances as the first small claims action.
Furthermore, even if Mr. DeGeorge's claims were not precluded by the prior litigation, they would have to be denied as none of the damages allegedly sustained by him were proven at trial. Mr. DeGeorge has not established, by credible evidence, that the trailer, the refrigerator, or the generator were damaged and/or removed by Mr. Nucci.
Accordingly, for the reasons set forth above, judgment is awarded in favor of defendant Edward Nucci dismissing the small claims action against him.
II. The Civil Court Complaint.
Mr. Nucci's Claims Have Not Been Proven
A. The Trespass Claim.
Mr. Nucci claims Mr. DeGeorge is liable in trespass because he moved his trailer onto Mr. Nucci's land without permission and remained there for some 18 months without paying rent.
The essence of a trespass to real property is injury to the right of possession. "Any unauthorized entry upon the land of another constitutes a trespass." 104 NY Jur2d §10, at 454; Roger v McCloskey, 305 NY 75 (1935); Stark v Sheffield Farms-Slawson-Decker Co., 166 NYS 411(Mun Ct, NY County, 1917).
Here, Mr. Nucci has failed to credibly establish that Mr. DeGeorge's placement of his trailer on the Premises was in fact "unauthorized.". The evidence at trial makes clear that Mr. Nucci knew for some 18 months that Mr. DeGeorge was living on his land. If Mr. DeGeorge was, in fact, occupying it without Mr. Nucci's permission, the logical course of action for Mr. Nucci would have been to immediately contact police (as he did some 18 months later), and if necessary, bring legal proceedings to remove Mr. DeGeorge from the property. To the contrary, the evidence at trial revealed that, on at least one occasion, Mr. Nucci's subcontractors hitched Mr. DeGeorge's mobile home onto a trailer to move it out of [*5]their work area, then put the trailer back to its original location rather then removing it from the Premises as Mr. Nucci allegedly believed he had the right to do. These facts lead this Court to conclude that Mr. DeGeorge was occupying the Premises with the knowledge and consent of Mr. Nucci until late April 2004, when Mr. DeGeorge was told by police to leave, which he did within 24 hours. Accordingly, because Mr. Nucci's own conduct is inconsistent with his claim that Mr. DeGeorge did not have his permission to remain on the Premises, the trespass claim is dismissed.
B. The Missing Generator Claim.
Mr. Nucci further alleges Mr. DeGeorge took possession of a welder/generator that was on the Premises. At trial, Mr. Nucci failed to credibly establish that this item was taken by Mr. DeGeorge, and no complaint concerning this alleged theft was ever made to police. Accordingly, this claim is dismissed.
C. The Alleged Civil Assaults.
Mr. Nucci claims that Mr. DeGeorge threatened him with bodily harm on two different occasions. Specifically, Mr. Nucci testified that, on April 28 and April 29 at the Premises, Mr. DeGeorge verbally threatened him and brandished a rake and hammer making him fear for his physical safety. Mr. DeGeorge denies that these events occurred. No police reports were offered to substantiate these claims. There was no proof of any effects flowing therefrom such as mental anguish, depression or emotional trauma for which damages may be sought. These acts (assuming they actually occurred) in and of themselves are insufficient to award damages. After considering the testimony of both parties, this Court find that Mr. Nucci failed to meet his burden of credibly establishing that these undocumented assaults occurred or that he suffered emotional distress sufficient to warrant the imposition of liability. Richard L. v Armon, 144 AD2d 1 (2d Dept 1989). Accordingly, this claim is dismissed.
D. The Claim For Damages to The Property.
Mr. Nucci claims that due to Mr. DeGeorge's presence at the Premises the grade of the property was severely damaged, costing at least $10,000.00 to re-grade. At trial, the evidence revealed that Mr. Nucci's laborers were working on the property and at Mr. Nucci's direction dirt from another construction site was dumped at the Premises. As there was no credible proof at trial that the property grade was altered by Mr. DeGeorge as opposed to someone else working at the site, this claim for damages is dismissed.
E. Plaintiff's Counterclaim For A Brokerage Commission Must be Dismissed.
At trial, plaintiff was permitted to amend his answer in Mr. Nucci's civil court action to assert a counterclaim for recovery of a broker's commission in the amount of $6,000 allegedly arising out of Mr. Nucci's purchase of the Premises. Mr. DeGeorge claims that he is entitled to this money pursuant to a broker's agreement entered into between him and Mr. Nucci dated March 25, 2004 (Pl. Ex. 1). This document provides that Mr. DeGeorge is entitled to receive this commission upon the passing of title of the Premises from TreeLane Realty (of which Mr. Nucci was a principal) to "Future Buyer."
There are several problems with this claim. First, it is undisputed that Mr. DeGeorge was not, at the time of the signing of this agreement (and has never been), a licensed real estate broker in this State. Accordingly, he is barred from recovering a [*6]broker's commission pursuant to this agreement or any other legal theory. Real Property Law § 440-a; 442-d; see also Rodolitz Organization v Secondary Mortgage Resources, Inc., 175 AD2d 277, 278 (2d Dept. 1991); Strong v Cuomo, 67 AD2d 705, 706 (2d Dept 1979).
Moreover, even if Mr. DeGeorge was able to enforce this agreement, he could not recover in any event because the Premises have yet to be sold by Mr. Nucci to anyone, including any "Future Buyer". Accordingly, Mr. DeGeorge's counterclaim is dismissed.
Conclusion
For the reasons set forth herein, judgment is awarded dismissing the action against Mr. Nucci in the small claims case (Index No. SC 1053/04); and judgment is awarded dismissing the action against Mr. DeGeorge in the civil court case (Index No. 39363/04).
This constitutes the Decision and Order of this Court.
Court attorney to notify all sides of this Decision and Order.
Dated: Staten Island, New York
March 22, 2005
___________________________
Catherine M. DiDomenico
Judge, Civil Court
ASN by _____ on _________
APPEARANCES
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