Ashby v David Bldrs., Inc.

[*1] Ashby v David Bldrs., Inc. 2009 NY Slip Op 51461(U) [24 Misc 3d 1215(A)] Decided on July 9, 2009 District Court Of Nassau County, Second District Bruno, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 9, 2009
District Court of Nassau County, Second District

Mathew S. Ashby, Plaintiff,

against

David Builders, Inc., Defendant.



SC 2722/08



Mathew S. Ashby, Pro se, 641 Lewore Lane, Elmont, NY 11003, Plaintiff

David Builders, Inc., Pro se, 3218 Milburn Avenue, Baldwin Harbor, NY 11510, Defendant

Robert A. Bruno, J.

The plaintiff, Mathew S. Ashby, commenced this small claims action against the defendant, David Builders, Inc., in the amount of $5,000.00, representing damages the plaintiff allegedly incurred for work that was not completed and for non-conforming work. The defendant has asserted a counterclaim in the amount of $5,000.00, representing the balance of its contract with plaintiff. The trial took place on June 3, 4, and 9, 2009.

On or about May 1, 2008 the parties entered into a construction contract ("Contract") to construct a dormer and shell with rear column, for a total contract sum of $60,000.00.

The plaintiff seeks damages regarding eleven different items of work that was not completed or work that was completed but was non-conforming. The items are as follows:

1.Beam extension - suffix and insulation

2.Back outside lights and bedroom light not restored

3.Rear gutter installed wrong and leaking/front gutters one side missing

4.Chimney is cracked/unprofessional [*2] 5.First floor water damage to ceiling in every room because of failure to secure topcover

6.Electric incomplete

7.Front door incomplete

8.Did not follow plans of architect

9.Installed wrong windows, etc.

10. Refused to finish columns of portico

11. Clean up was not completed on site (garbage)

Notwithstanding the 11 items listed in plaintiff's complaint, plaintiff initially only introduced evidence of his damages regarding items 6 (electric incomplete), 7 (front door incomplete), 8 (did not follow plans of architect), 9 (installed wrong windows, etc.) and 10 (refused to finish columns of portico) before plaintiff concluded his testimony on June 4, 2009 and therefore, for the purpose of determining what, if any, damages plaintiff may be entitled to, this Court will only consider items 6-10 at this time.

Turning first to item 6 (electric incomplete). The plaintiff testified that the defendant failed to complete the electric work and had submitted as part of his damages a proposal for work to be completed by another contractor and indicating a $1,300.00 deposit was paid for said work. The proposal is for "the removal of temporary service, install service permanently to new extension, install two high hats controlled by wall switch on first floor and install chandelier at entrance controlled by wall switch on second floor." In contrast to the proposal for the completion of electrical work, the Contract (Exhibit 1) provides: "Electric - run new wire throughout dormer only." When the Court confronted plaintiff with this inconsistency, the plaintiff agreed that the new proposal included work that was outside of the defendant's contractual obligation to perform. Furthermore, the plaintiff was unable to allocate what portion of the proposal should have been attributed to the defendant's work. Therefore, based upon the plaintiff's lack of proof of its damages, this Court does not award plaintiff any amount regarding this item. In addition to the foregoing, the items in the new proposal for the completion of electrical work were admittedly outside the scope of work called for in the defendant's Contract.

Item 7 (front door incomplete). The plaintiff testified that the Contract did not explicitly state that the door had to be replaced. However, plaintiff did testify that the Contract on page 1 did state, "All work will be done according to architectural plans, approved by the Building Department." The plans (Exhibit 2) depict an elevation of the front of the house with windows, a chandelier, portico and door, but the plans do not require the defendant to install a new door. Not only was it not the defendant's obligation to install a new door, the plaintiff has admitted as much by issuing the defendant a $5,000 change order (Exhibit C) to, "Remove the existing front door and screen door." Therefore, by plaintiff's own admission, its claim regarding the door for $1,635.00 (Exhibit 8) is rejected.

Item 8, (that the defendant did not follow the plans) is also intertwined with plaintiff's number 9 (claim that the defendant installed the wrong windows). The plans (Exhibit 2) call for a [*3]certain model window number to be installed on the second floor, rear portion of the house. The Contract also provides on page 3, "furnish and install American Craftsman windows." The defendant testified he installed the windows properly and pursuant to the plans (Exhibit 2) that were prepared by plaintiff's architect. Not surprisingly, the plaintiff and plaintiff's new contractor, Mr. Marchasi, testified the windows that the defendant installed violated the building code, but neither offered any credible proof of what the building code required.

In addition to the foregoing, Mr. Marchasi, who plaintiff called to testify, was unable to determine the current size of the windows by looking at the plans. Mr. Marchasi testified he would have to consult other sources to determine the dimensions of the windows that were installed or what the building code required. Neither the plaintiff nor Mr. Marchasi introduce any evidence regarding the actual size of the windows defendant installed. Mr. Marchasi also testified he did not measure the size of the windows the defendant installed. Mr. Marchasi also testified that the windows that were installed by defendant were double hung windows, which were better then casement windows regarding egress, because casement windows do not open all the way.

Therefore, not only did plaintiff fail to establish the defendant did not install the windows according to the plans plaintiff's architect prepared, the plaintiff never explained why it chose to replace the windows with Anderson Windows, a window the defendant testified was more expensive than the American Craftsman windows called for in the Contract, and why it chose casement windows instead of double hung, (see plaintiff's Exhibits 5, 6 and 12).

There was simply no credible testimony that the defendant did not install the windows pursuant to the plans that the architect prepared. It is well settled that the duty to design a structure properly rests with the architect and a contractor is not liable to the owner for a breach by the design professional (see, MacKnight Flintic Stone Co. v. Mayor of NY, 160 NY 72 (1899)).

The defendant also testified that its rough framing and sub-flooring work passed inspection (Exhibit H). It also appears that on or about December 29, 2008 the plans were amended or supplemented to reflect, among other things, that the size of the windows were changed on the plans. The plaintiff did not offer any explanation why the plans had to be revised, nor did the plaintiff call its architect to testify regarding the proper type of windows to use or why the plans were subsequently revised to change the size of the windows after the windows were installed by the defendant. Therefore, based upon the foregoing, it appears that the defendant installed the windows pursuant to the Contract and plans and therefore the plaintiff is not entitled to any damages for this item.

Finally, plaintiff's final claim Item 10 (portico) is that he had to purchase columns for his portico in the amount of $1,629.62 (Exhibit 4). The Contract provides at page 2, "Install A frame portico, front of the house. Install column and roof". The plans do not specify what type of column or what type of material is to be used. The parties have both agreed that the defendant did build a portico and that the plaintiff didn't like it and subsequently instructed the defendant to tear it down, which the defendant did. The plaintiff then purchased 2 new columns and the defendant installed [*4]same without charge. When the plaintiff was asked on cross examination what was it the defendant did wrong the first time it built the portico, the plaintiff replied, "It didn't look right." It appears the defendant acted in good faith in rebuilding the portico without charge. It also seems unfair to hold the defendant to plaintiff's subjective standards of what a portico should look like when it was plaintiff's architect who failed to specify the type, size and materials to be used. Based upon the forgoing, plaintiff failed to prove the defendant did not build the portico in accordance with the plans, therefore plaintiff's claim for the portico is denied. Generally, a contractor has a duty to follow the plans and specifications and does not guaranty that the plans and specifications are correct. (See, MacKnight Flintic Stone Co., supra .) The contractor is only responsible for the performance of the construction contract and those working under its direction (see, Carrols Equity Corp. v. Villnave, 76 Misc 2d 205, 350 NYS2d 90, affd mem 49 AD2d 672, 373 NYS2d 1012(4th Dept. 1975)).

On June 9, 2009 when the Court directed the plaintiff to call his first witness, Mr. Marchasi, the plaintiff requested to reopen his direct testimony again. The plaintiff only requested that it be permitted to introduce a 2 page "progress report" (Exhibit 12) which was admitted into evidence without objection.

Upon subsequent review of the first page of Exhibit 12 dated May 7, 2009 and printed on June 8, 2009, it appears to be the same exhibit as plaintiff's Exhibit 6 dated May 7, 2009 and printed May 8, 2009. Except for Exhibit 12 being printed after the plaintiff completed his testimony, on damages and the day before plaintiff requested this Court to allow it to reopen his direct testimony it appears the plaintiff increased his initial deposit of $600.00 in Exhibit 6 to a total of $1,159.57 in Exhibit 12 regarding the damages claimed for windows. The Exhibits 6 and 12 in all other respects are identical and for the reasons previously discussed herein, plaintiff's window claim is rejected.

Turning next to the second page of Exhibit 12, which is dated June 5, 2009, the day after plaintiff originally stated he finished his direct testimony, is a document which initially indicates in the center of the page in upper case letters "RECEIPT", then a few lines down, again in the center of the page in upper case letters, the phrase: "WORK TO BE PERFORMED" appears. The document also list seven different items of work to be performed and indicates that a $2,500.00 deposit or payment was received.

The fact that Exhibit 12 was generated the day after the plaintiff stated he was finished testifying and after his cross examination and re-direct testimony was not addressed by plaintiff.

If Exhibit 12 is to be received as a proposal or estimate as evidence of plaintiff damages, it is rejected because 2 independent estimates are required. It is well settled that in order for the plaintiff to prevail at trial, the plaintiff must establish its case by a preponderance of the evidence. (Nacleric v. Adjunct Faculty Ass'n (AFA) Nassau Community College, 1 Misc 3d 135(A), 781 NYS2d 625 (NY Sup. App. Term 2003).

It is also well settled that a party can not recover its alleged damages without producing [*5]sufficient proof of same.

The Uniform District Court Act §1804 - informal and simplified procedure on small claims, states in relevant part:

An itemized bill or invoice, receipted or marked paid, or two itemized estimates for services or repair, are admissible in evidence and are prima facie evidence of the reasonable valve and necessity of such services and repairs.

A party that presents only a single estimate without further proof cannot adequately prove damages since "[a]n estimate is no more than a guess as to the cost of repairs and, as such, damages cannot be awarded on basis of such conjecture or guesswork." Murphy v. Lichtenberg-Robbins Buick, 102 Misc 2d 358 (App. Term, 2d Dept 1978) plaintiff seeking damages stemming from a faulty repair job to his automobile failed to prove damages because he provided only a single repair estimate without any further evidence); Murov v. Celentano, 3 Misc 3d 1 (2d Dept 2003) (homeowner failed to establish damages to support an award equal to the costs of repairing a sprinkler and shoe rack based on faulty home contracting work where the homeowner only submitted one estimate without further evidence); Borman v. Purvis, 299 AD2d 615 (3d Dept 2002) (plaintiff was not entitled to $3,000 damage award for property damage because only one estimate was filed with the Court without any further evidence).

Simply stated, plaintiff did not offer credible proof of its alleged damages and as such this Court is unable to award plaintiff any damages based upon one proposal or estimate.

On the other hand, if Exhibit 12 is to be deemed a receipt as evidenceof plaintiff's damages, then since there was no testimony or itemization regarding what work was performed and what work remains to be performed, this Court is unable to determine if the plaintiff seeks to recover for items this Court has already determined plaintiff is not entitled to recover and is therefore unable to allocate any portion of the $2,500 plaintiff's claims. In short, plaintiff has simply failed to demonstrate the evidentiary value or weight this Court should accord Exhibit 12.

Therefore, based upon the foregoing, the plaintiff has not carried its burden of proof that the defendant breached the construction contract, nor did plaintiff establish it suffered any damages as a result of defendant's performance.

Turning now to defendant's counterclaim in the amount of $5,000 representing the balance of its construction contract. Since it was undisputed that the defendant was paid $55,000 against a contract price of $60,000, the defendant is entitled to be paid the balance of its contract as the defendant testified it completed the project according to the contract and plans and plaintiff has failed to refute defendant's claim with credible evidence.

Accordingly, plaintiff's claim against the defendant is dismissed and the defendant is awarded $5,000 on its counterclaim against plaintiff. [*6]

This constitutes the decision and order of the Court. SO ORDERED:

DISTRICT COURT JUDGE

Dated: July 9, 2009

cc:Mathew S. Ashby, Pro se

641 Lewore Lane

Elmont, NY 11003

Aaron Ward, Esq.

245-07 Francis Lewis Boulevard

Rosedale, New York 11422