Middle Is. Landscaping & Contr. v Martin

[*1] Middle Is. Landscaping & Contr. v Martin 2011 NY Slip Op 52162(U) Decided on December 6, 2011 Suffolk County Ct Tarantino, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 6, 2011
Suffolk County Ct

Middle Island Landscaping & Contracting, Plaintiff(s)

against

Patricia Martin, Defendant(s)



112310



Kirschenbaum & Phillips P.C.

By: Michael Kohl Esq

Attorneys for Plaintiff

3000 Hempstead Tpke 4th Fl

Levittown NY 11756

516-746-1144

Anthony Capetola Esq

By: Lance Simon Esq

Attorney for Defendant

Two Hillside Ave Bldg C

Williston Park, NY 11596

516-746-2300

Andrew G. Tarantino, J.

Plaintiff commenced this action in 2008 seeking payment for materials, labor and other services provided to Defendant in 2006. Plaintiff alleged that it performed masonry and design stone work for Defendant for an agreed price of $50,675.00. Defendant paid $34,000.00 leaving a balance due of $16,675.00. Defendant alleged that the Plaintiff's work was faulty, that Defendant was "double-billed" [*2]for many items, that Defendant was promised certain credit adjustments, and that Plaintiff was relying upon a forged document as part of its case. The action was transferred, pursuant to Civ. Pract. Law & Rules §325(d), to this Court for trial. A trial without jury was conducted over two days.

TESTIMONY

Peter Mistretta was the only witness for Plaintiff. He was self employed and owner of Middle Island Landscaping & Contracting Company (MILCC) for about 16 years. At the time of the subject project, Mistretta possessed a Suffolk County Home Improvement License. Originally involved in landscape maintenance, Mistretta expanded into masonry and design work about 10 years ago. He does not perform the labor himself, but supervises laborers. Accordingly, he checked on the Defendant's project every few hours in addition to employing a foreman to remain at the project. In October 2006, the parties entered into a contract signed by Defendant. Contract "1" provided for:

Mini walls with capsPillows

Rotondo circleDriveway removal

18 stepsTie removal

2 landingsCaps on pillows

The total was $19,000.00 if the project was completed using Hera Techo-Bloc stone. There were charges listed as "extras" as follows: left side [dirt] $150.00, dumster [sic] fee $375.00, Athena stone if used $1,300.00. Shortly thereafter, the parties entered into another contract signed by Defendant. This second contract memorialized the change from using Techo-Bloc stone on the stairway treads to using bluestone. Contract "2" contained two sections as follows: 18 steps bluestone treads Bluestone landing (7' x 5') Blue stone border (25'- x 1') Rip up caps n/cfor $5,700.00 and Cultured and corner stonefor $7,000.00

A third contract was then entered into and signed by Defendant for work on a patio and stairs in the back of the house. Contract "3" provided the following:

Patio 40 x 48 Concrete slab for hot tub 2 steps bluestone Bluestone walkway Remove old brick and concrete Remove railroad ties (N/C) [*3]Move hot tub Build new steps Blue stone material N/C Contract "3" totaled $8,500.00.

According to Mistretta, a fourth contract was entered into which he submitted bearing the Defendant's signature. Contract "4" itemized the following:

Concrete all driveway $350.00 1 skid materials $550.00 2 driveways hauled 250.00 Dirt front wall 200.00 Concrete hauled 400.00 Rotondo top part 250.00 High wall 1 side 300.00 Pipe inside pillows 150.00 Front wall moved 500.00 [two items illegible] N/C Contract "4" totaled $2,950.00.

Mistretta said that all of the work contained in each of the four contracts was completed by MILCC. The four contracts totaled $45,275.00 of which $34,000.00 was paid by Defendant. Mistretta then submitted three additional bills for "extras" totaling $5,400.00. These bills were not signed by the Defendant. Each of these bills was as follows:

EXTRA "1" treads (15-18) $800.00 Additional skid Hera N/C EXTRA "2" Tread flagging $300.00 Rotundo [sic] 250.00 Top landing materials 250.00 Clear front hill/haul 650.00 Front wall geo-grid 100.00 Stone behind wall 100.00 Higher wall 200.00 Ledge cultured stone 300.00 Extended treads 250.00 [*4] Labor 200.00 300.00 Sealer blue stone [blank] Sealer driveway [blank] Labor redoing wall & driveway N/C Mini-crater wall (larger) N/C EXTRA "3" Treads / extended patio $700.00 Difference original brick & Hera 700.00 4" steps not 2" 300.00 Blue stone velvet (patio) N/C

Mistretta maintained that the reason for changing from Hera Techo-Bloc to bluestone for the treads was because Defendant did not like its appearance. Mistretta testified that the charges were for material only, but he did not remember if he told Defendant what would be the total of the "extra" charges. The project was completed by about Christmas 2006.

On cross-examination, Mistretta acknowledged that in the early stages Defendant expressed dissatisfaction with a couple of things. He could not, however, remember specifics. He did remember hiring a mason who made changes to the work that had been completed, and that the Defendant was happy with the project once the new mason was hired. He denied that he was ever told that any work was faulty, but said that Defendant did not like the appearance of the workmanship. Yet, in his 2009 deposition, Mistretta stated that the original Techo-Bloc material on the step was inappropriate. When asked about the charges contained in the second contract, Mistretta denied that he promised Defendant a credit for the original materials.

Edward Gillespie testified as Defendant's expert, deemed qualified by stipulation. Gillespie is an Independent Consultant with a degree in civil engineering and has been a licensed engineer since 1973. He was called by Defendant in the Fall of 2006 to inspect the ongoing project. His first report was made November 7, 2006, after examining the driveway, front stairway and retaining walls. He opined that the base underlying the driveway stones was inadequate. He did not recall the number of stones he lifted, but of the ones he did inspect each was on a dusting to 1-inch of sand instead of the manufacturer's recommendation of 2-inches of sand over a crushed rock base. The cement lines of the retaining wall were not straight, but appeared wavy. He also believed that the height of the retaining wall was insufficient for the amount of dirt behind the wall. The patio bricks were not even or straight, and the blocks used on the front stair sides were also wavy. The blocks of stone used were Hera Techo-Blocs. He recalled that the project was substantially completed when he made the first visit. He was called back by Defendant at the end of November 2006. He observed that most of the corrections he recommended in his earlier report were completed. Much of the work had been redone; the driveway was restored over a proper base, and retaining wall cement lines were straight. He made a third visit in February 2007 when Defendant wanted an additional opinion on the completed project. The only items he observed [*5]needing attention at that time were to seal coat the stones, grade the side yard, reconnect the hot tub, and remove additional dirt and debris. He reviewed the contracts and confirmed that although Techo-Bloc was originally used for stairway treads, the stairways treads were replaced with bluestone. He also opined that after reviewing the fourth contract, it appeared to him that the items included on that contract were repetitive of elements contained in the first three contracts. Gillespie then testified that he was asked to complete an inspection and report in November 2011. In it, he estimated that the completed project was worth $34,000.00. He arrived at this value by using an industry standard of adding the material costs, doubling it, then adding an additional 20% for overhead. He reviewed the bills from 2006 for the materials. He calculated that the bluestone treads were $2.00 per square foot less than the Hera Techo-Bloc originally used. He estimated that the treads used for the 18 front stair steps totaled 120 square feet (Plaintiff's papers reflected about 162 square feet). He also believed that the three additional charges for extras (totaling $5,400.00) were for materials and work covered by the signed contracts.

On cross-examination, Gillespie acknowledged that he did not know MILCC's actual labor, overhead and other costs when he calculated the value of the project. However, the formula he used had an error of 10% to 15%, and was a good guideline. He acknowledged that none of the contracts required MILCC to seal the stones, grade the side yard or reconnect the hot-tub. He repeatedly stated that he did not know why the stairway treads were changed from Hera Techo-Bloc to blue stone.

Defendant Patricia Martin was the last witness to testify. She met the Plaintiff through a Penny Saver ad. She had seen his trucks in the neighborhood doing lawn maintenance. Martin stated that after speaking with Plaintiff, he told her that he never did a project as big as the project she planned. Martin requested Hera Techo-Bloc, and was adamant that she told Plaintiff to install the stone in accordance with manufacturer guidelines. The "structure" of the retaining walls and stairs already existed and were designed with railroad ties. MILCC merely had to remove the lumber and replace it with the stones. She first noticed a space between the house and stairway which never existed before when the Techo-Bloc started being placed. Also, the Techno-cap used for the stairway treads looked more like retaining wall caps, and not treads to be used on the stairs. When she spoke with Plaintiff, he stated that the Techo-Bloc was inappropriate for tread use, and he suggested the bluestone replacement for greater stability. Based upon his assurances, as Martin described, she agreed to the bluestone treads. Otherwise, all the other stonework was completed with Hera Techo-Bloc. When asked about "extras" in the first contract, Martin explained that the only extra about which she was aware was $1,300.00 if Athena stone was used in place of Hera. Athena stone was not used anywhere in the project. Also, although the Plaintiff presented her the second contract for the bluestone replacement, Martin said that Plaintiff assured her that she would be credited for the costs of the stone originally placed by Plaintiff. Martin acknowledged that she did sign what was introduced as contracts "1", "2", and "3". Martin then introduced a second part to contract "2" which required MILCC to seal coat the stones for no charge. Martin said she never saw Contract "4" until it was left in her mailbox. Contract "4" was submitted by the Plaintiff bearing Defendant's signature. However, Martin vehemently denied that she signed the fourth contract, and further stated that the signature was not hers. She testified that when she received it in her mailbox she filed a complaint with the police alleging that Plaintiff forged her signature. The complaint went no further because Defendant did not expect the Plaintiff to pursue payment for the purported fourth contract. Similarly, the three additional charges for extras (totaling $5,400.00) were also left in her mailbox without explanation. Her signature is not on any of those three documents.

On cross-examination, Martin acknowledged that despite a few items which needed to be finished when the project ended at Christmas 2006, she was pleased with the project. [*6]

The Defendant closed by arguing that the Plaintiff was barred from seeking payment for the $5,400.00 in extras by the Statute of Frauds. Defendant also relied on the expert's opinion that the project was valued at $34,000.00 and, therefore, Defendant should not be required to pay more than this value. Lastly, because the fourth contract was forged, Plaintiff is also barred from seeking recovery. Plaintiff argued that the Defendant read and signed contracts "1", "2", "3" and "4". Regardless of the expert's opinion, Defendant entered into a contract with an agreed upon price. Regarding the alleged forgery, Plaintiff argued that Defendant's claim was never raised before the trial, and Defendant never made mention of a forgery in her deposition.

The Court reserved decision.

ANALYSIS

In a matter such as this, it is the province and indeed the obligation of the trial court to assess and determine matters of credibility. Morgan v McCaffrey, 14 AD3d 670, 789 N.Y.S.2d 274 (2d Dep't 2005); Matter of Liccione v Michael A., 65 NY2d 826, 493 N.Y.S.2d 121 (1985). Here, the burden is upon the plaintiff to plead and prove its direct case by a fair preponderance of the credible, relevant and material evidence. Prince-Richardson on Evidence, §3-210; Torem v Central Avenue Rest, 133 AD2d 25, 518 N.Y.S.2d 620 (1st Dep't 1987).Under [our] system of adversary litigation, the task of furnishing evidence rests solely upon the parties, neither the judge nor the jury having any obligation or duty in this regard. Fisch on New York Evidence, Second Edition, §1087, Lond Publications 1977/2008. In reaching its decision, the Court cannot be affected by sympathy for any of the parties, what the reaction of the parties or of the public may be, whether it will please or displease anyone, be popular or unpopular or, indeed, any consideration outside the case as it has been presented in the courtroom. NY Pattern Jury Instructions, Civil, §1:27, January 2011. The Court credits the testimony of the Defendant, specifically regarding the items identified as EXTRAS.

The Defendant first argued that this action was barred because the Plaintiff did not possess a home improvement license. Suffolk County Code, Chapter 345-3 A, in pertinent part, states that: It is unlawful for any person, other than those exempt under the provisions of § 345-4, to engage in any business in the County regulated by this chapter without obtaining a license therefor from the Office in accordance with and subject to the provisions of this chapter.

The Code, at §345-8, further states: A contract entered into after one year after the effective date of the appropriate article of this chapter by a person who engages in a business regulated by this chapter, who on the date of the contract does not possess a valid license to engage in such business, is unenforceable by him and voidable at the option of any other party to the contract rendered or to be rendered to such party. Nothing contained herein shall be construed to prevent any other party to the contract from enforcing its terms. [emphasis added]

The Plaintiff submitted a copy of Suffolk County License, No 35023-H, issued May 13, 2004. Plaintiff testified that his license was never suspended or revoked, and that it was valid at the time of the project. Defendant failed to provide any evidence to the contrary. Accordingly, the Court holds that the Plaintiff had a valid home improvement license and was not barred from commencing this action. [*7]

Next, the Defendant argued that the Plaintiff was barred by the Statute of Frauds from seeking payment for the statements identified as EXTRAS "1," "2," and "3" because they were not signed by the Defendant. General Obligations Law 5-701, the Statute of Frauds states, in pertinent part, that Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking... by its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime.

However, open-ended agreements with no set time for repayment do not violate the Statute of Frauds. Constantini v Bimco Industries, 125 AD2d 531, 510 N.Y.S.2d 136 (2d Dep't, 1986). EXTRAS "1," "2," and "3" itemized various materials associated with the project and set forth a total due without any time for the payment to be made. Accordingly, although the statements were not signed by Defendant, the Statute of Frauds is not a bar to an action seeking payment for the EXTRAS.

Defendant then argued that the signature on Contract "4" was not hers, but was a forgery. Comparison of a disputed writing with any writing proved to the satisfaction of the court to be the handwriting of the person claimed to have made the disputed writing shall be permitted. NY Civ. Pract. Laws & Rules §4536, McKinneys, 2011. Defendant acknowledged her signature on Contracts "1," "2," and "3" which were photocopies and, therefore, all in black ink. Contract"4" was written in blue ink, except for Defendant's signature and a notation "change sign." Although Plaintiff testified that his lack of having original contracts was because he would take the signed contracts back to his office to photocopy, it was not satisfactorily explained why Contract "4" appeared to be an original in blue ink. However, there are sufficient differences between the first three signatures which Defendant acknowledged as hers such that this Court cannot say with certainty that the signature on Contract "4" is either a photocopy or forgery. This Court is not qualified to determine whether the signature is felt-tip, ballpoint or photocopy, or whether there is texture to the signature, or indents from it. The Court can state with reasonable certainty that it is not a photocopy of one of the first three signatures because of the subtle differences that exist among all four signatures. Without the assistance of a handwriting expert, the Court must accept Contract "4" as though it was signed by the Defendant.

The remaining issue is whether the Plaintiff is entitled to judgment on the unpaid portions of the purported bills. Courts have long adhered to the principle that in the construction of contracts, where the language is clear, unequivocal, and unambiguous, the courts should interpret a contract by its own language. See, R/S Assoc. v. N.Y Job Dev. Auth., 98 NY2d 29, 744 N.Y.S.2d 358, 771 N.E.2d 240 (2002). Because Contracts "1," "2," "3," and "4" were signed by Defendant, it would be improper for this Court to interpret the contracts otherwise and, therefore, the Defendant is obligated to make payment. If, as Defendant alleged, Plaintiff was supposed to credit the Defendant at the time Contract "2" was signed, that is, beyond the $2.00 per square foot difference between Hera and blue stone used for the treads, then Defendant should have memorialized such an intention on Contract "2." In contrast, although not barred by the Statute of Frauds, the Court cannot find Defendant liable for EXTRAS "1," "2," and "3." First, neither document was signed by either party. Thus, there is not a clear, unequivocal and unambiguous contract. Next, the ambiguousness must be determined in favor of the Defendant. In each of the four contracts, Plaintiff described the project in general terms, such as driveway, steps, rotondo, etc. Plaintiff did not specify the quantity of materials to be used for each portion of the project which was included in the total price. Next, each of the four contracts contained a provision that Plaintiff would "furnish material and labor - complete in accordance with the above specifications." The four [*8]contracts were not "estimates" which may be subject to small adjustments in price, nor did the four contracts provide for a price adjustment based upon materials used (unless materials were changed by the homeowner which was not the issue in this case). The Court concurs with the Defendant's expert that the materials set forth in EXTRAS "1," "2" and "3" were for materials subsumed in the Plaintiff's four contracts for the complete project.

Now, therefore, based upon the above, it is hereby

ADJUDGED that Plaintiff is entitled to payment for CONTRACT "1," "2," "3," and "4" which totaled $43,150.00; and it is further

ADJUDGED that Plaintiff is not entitled to recover payment for EXTRA "1," "2," and "3" which totaled $5,400.00; and it is further

ADJUDGED that Plaintiff is not entitled to recover payment for the extras labeled as dumpster, dirt and Hera, totaling $1,825.00 because these items were subsumed in the total cost of the project, or it remained ambiguous that these items were in-fact extras; and it is further

ADJUDGED that Defendant is entitled to a credit of $324.00 representing the cost difference between the Hera Techo-Bloc and bluestone used for the stairway treads; and it is further

ORDERED that judgment be entered in favor of the Plaintiff against the Defendant in the sum of $8,826.00, together with interest from the date final judgment is entered.

This constitutes the decision and order of the Court.

Submit judgment.

Dated: 12/6/2011

ENTER

_____________________________________

Judge