Palumbo v Contemporary Stonescapes, Ltd.
Annotate this CaseDecided on September 12, 2012
County Court, Suffolk County
Louis Palumbo, Plaintiff,
against
Contemporary Stonescapes, Ltd., Defendant.
20406/2008
Thomas F. Liotti, Esq.
Attorney for Plaintiff
600 Old Country Rd, Ste 530
Garden City, NY 11530
(516) 794-4700
Lawrence M. Gordon, Esq.
Gordon Sibell & Iannone, P.C.
Attorneys for Defendant
300 Garden City Plaza, Ste 106
Garden City, NY 11530
(516) 333-5000
Andrew G. Tarantino, J.
NATURE OF THE CASE
Plaintiff homeowner commenced this action by Summons and Complaint on May 23, 2008. Plaintiff hired Defendant to construct and install certain stone work at his house, and thereafter claimed defective work, breach of warranties, breach of contract and negligence. Defendant, Contemporary Stonescapes, Ltd., filed its Answer on August 4, 2010 denying the complaint, and counterclaimed for an unpaid balance of $17,361.00 due and owing on the contract. The action was transferred to this Court, pursuant to Civ. Pract. Law & Rules §325(d), on June 7, 2012. A trial without jury was conducted.
TESTIMONY
[*2]
Plaintiff called Avinoam Keshet to testify. Keshet was the principle and co-owner of Defendant Contemporary Stonescapes Ltd. which was incorporated in 1996. His wife was the other co-owner. At the time of the subject home improvement, Keshet had about 13 employees. Keshet was licensed by the County of Suffolk and took various classes in the use and installation of paving stones.
Keshet met Plaintiff in December 2007 after Plaintiff telephoned Keshet to perform a job estimate. Plaintiff had a crescent-shaped driveway in front of his house with two driveway entrances to the road. He described that the Plaintiff wanted to replace the sidewalk which ran along the front of the property from driveway entrance to driveway entrance. The driveway aprons would be paver stones, and the existing driveway would be replaced with a redstone gravel driveway. At the apex of the driveway crescent, the point where the driveway passed by the front door, the gravel would be replaced by an area of pavers with a circular design inlay, and paver stones would be placed in front of the garage. Each driveway entrance would by columned by a 5-foot high brick veneered pillar on each side of the entrance. Then there would be two 4-foot long curved decorative walls one at each driveway entrance. The wall would end with a 3-foot high brick veneered pillar. That same evening the parties entered into a contract.In December 2007 the parties entered into the contract signed by both parties. This original contract was written as follows:
Veneer - 292 S F Bricks + 4 x 2 ½ x 2 ½ x 2 ½ + 2 x 2 x 2 ½
Driveway - 3700 SF
Apron - x 2 8 x 12 192 SF pavers ?
Walkways - 80 + 9 x 9 w/w 160 SF pavers?
Apron -4 x 18 pavers ?
Apron - cement 15' x 4'5"
s/w 35 B (4x4)
Light Pole - (4) 2 ½ x 2 x 5 Hi + (2 x 20 x20 x 3 Hi + 2 walls (3 -2 ½) Hi x 4'
The contract also contained a diagram of the circular inlay proposed by the front door on the crescent driveway. The area which would contain the circular inlay design was to be about 8 feet in diameter. There was no individual pricing listed next to each element of the project; the contract set forth only a total price of $28,935.00. According to Keshet, the pillars were to have brick veneer and the driveway apron pavers had no design inlay. The parties met at the supplier to select the pavers for the driveway and pillars. He then described that the Plaintiff wanted the pillar veneer to be pavers, not brick. The work started April 2008. Although stating at his deposition that 100% of the project was completed, Keshet acknowledged that the circle inlay was never installed.
During the project, Keshet visited the site twice daily. He acknowledged that when the project was about 75% completed, the Plaintiff complained about the small size of the paver area where the inlay design would be placed. After redesigning the inlay, the parties noted that the design would require about an additional 10 feet of pavers. After visiting the supplier, the Plaintiff agreed to not increase the size of the inlay. Also, Plaintiff wanted to add additional pillars and walls at the driveway entrances. Keshet explained that the original plan was for four [*3]high pillars, two of which would be connected to the sloping wall to two shorter pillars. Keshet described how a wall and lower pillar could not be erected at one of the driveway entrances because of the close proximity of an old tree with substantial roots. At that spot, only a high pillar was constructed with no wall or lower pillar. Plaintiff also wanted to change the driveway material. Instead of redstone gravel, Plaintiff wanted blacktop. After learning that blacktop would be more costly, the Plaintiff elected to remain with the redstone gravel.
On cross examination by his attorney, Keshet stated that the kit for the circular inlay was included in the original contract price. However, referring to a photograph, the final pavers formed a square design without the circular inlay. Keshet explained that when the parties met at the stone yard the Plaintiff selected a more costly ledge stone for the pavers at the front door. The cost of the original contract was based upon 85 cents per square foot, so the additional cost would have been $400.00 to $500.00 more, equal to the cost of the kit. To accommodate the higher cost of the stone, Plaintiff elected to forego the circular inlay in exchange for the more costly ledge stone. A second contract was entered into in March 2008 reflecting slight changes from the original, but significantly missing the circular inlay diagram. Also, the second contract called for only four 5-foot high pillars, without any mention of the walls. Again, the second contract was not itemized. Instead, it also reflected a total contract price of $24,680.00, an amount almost 15% lower than the first contract.
Plaintiff Louis Palumbo next testified. He explained that he obtained Defendant's name from the NCE Barter Group of which each was a member. Referring to photographs, Palumbo said he was dissatisfied that the pillar edge was not a finished edge. He did not complain to Defendant during the job because he did not realize it until a couple of weeks after the job was completed. It also was not until then that he realized that the pillars did not have brick veneer.Palumbo denied that he ever discussed price differences with Defendant. Palumbo also complained about the sidewalk and stated that it was not perfectly level.
During cross-examination, Palumbo stated that Keshet was never at the house during the installation. Then he acknowledged that he himself was not there daily in order to know if Keshet was ever at the job. It was when Palumbo returned from vacation that he realized that there was no circular inlay design in the pavers by the front door. In his pre-trial deposition, Palumbo stated that the redstone driveway was "fine, " and that regarding the sidewalk and driveway aprons, it all "was OK except for the sidewalk." He described that the sidewalk dipped in the middle, then clarified that the dip was minor.
The Defendant did not call any additional witnesses for its case. Instead, it relied upon the testimony proffered on Plaintiff's case.
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 NYS2d 274 (2d Dept 2005); Matter of Liccione v Michael A., 65 NY2d 826, 493 NYS2d 121 (1985). Plaintiff's causes of action were for breach of contract and negligence.
The elements of a cause of action for breach of contract are: (1) formation of a contract between the parties: (2) performance by plaintiff; (3) defendant's failure to perform; and (4) [*4]resulting damage. Furia v Furia, 116 AD2d 694, 498 NYS2d 12 (2d Dept 1986). A contract is formed when there are at least two parties with legal capacity to enter into a contract who give their mutual assent to the terms of a contract and there is consideration. 2 PJI 3d 4:1 at 638 (2011); see, Maas v Cornell University; 94 NY2d 87, 93, 699 NYS2d 716, 721 NE2d 966 (1999). As to damages, the plaintiff bears the "burden of proving the extent of the harm suffered." J. R. Loftus. Inc. v. White, 85 NY2d 874, 877, 626 NYS2d 52 [1995], citing Berley Indus. v City of New York, 45 NY2d 683, 686, 412 NYS2d 589 [1978]. "Damages are recoverable for losses caused ...by the breach only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." Magnum Holding, Inc. v Eldan Construction Corp. 2009 WL 5078842 (Nassau Supreme, 2009) citing Haughey v Belmont Quadrangle Drilling Corporation, 284 NY 136, 29 NE2d 649 [1940]. Certainty "requires only that damages be capable of measurement based upon known reliable factors without undue speculation." Ashland Management Inc. v Janien, 82 NY2d 395, 403, 604 N.Y.S.2d 912 [1993], citing Restatement [Second] of Contracts § 352. 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.
There is no dispute that a contract existed. The dispute lies in what was or was not completed. Aside from the disagreement about the circular inlay design being eliminated due to increased paver costs, there was little upon which to differentiate the credibility of either party. However, regarding the circular design, the Defendant offered a more plausible explanation about why it was not constructed. Plaintiff's credibility was slightly more questionable after he stated that Keshet was never at the project despite the fact that Plaintiff was not at the house every day and, therefore, could not know.
Regarding his complaints, Plaintiff testified that the driveway aprons and the redstone driveway were fine. He also stated that the sidewalk issue was minor. The Court notes that Plaintiff, except for a photograph of the sidewalk from a distance, offered no proof that the sidewalk dipped. These elements of the Plaintiff's claim are dismissed. Although the Defendant offered a more credible explanation bout the missing circular inlay design, there was no evidence of its value. Similarly, regarding the pillar brick face, Plaintiff could have a viable claim here but for the lack of proof of damages. Clearly, both the December 2007 and March 2008 contracts referred to the term "brick" describing the veneer category. The pillars were veneered with pavers. Assuming a breach of the contract occurred, Plaintiff failed to prove the value of the absence of the circular inlay design and the bricks. Each contract was for a lump sum amount. Accordingly, any evaluation of the value of damages for the breach would be wholly speculative by the Court. Similarly, there was no itemization for the cost of constructing the pillars. Assuming the Court established the one missing low pillar and wall, despite the Defendant's credible explanation, hereto the Court was deprived of an itemization of project components from which the Court could measure damages. For example, the Court was not provided with the number of pavers per pillar, the number of bricks planned, the amount of cement and cost per pillar, nor the cost of other materials used to construct the pillars and walls. Without mere speculation, the Court cannot determine the level of damages caused by the failure of the Defendant to use brick instead of pavers for the veneer, for the missing pillar and wall, and [*5]for the missing circular inlay design.
The Court next moves to the Defendant's counterclaim. While the lack of an itemized contract may have acted as a sword against Plaintiff's claims, it may serve as a shield to the counterclaim. There is no dispute that the Plaintiff paid $11,574.00. However, because there were two contracts pertaining to this project, the original for $28,935.00 and the second for $24,680.00, the Court cannot determine to which contract the payments should be applied. It was not adequately explained why the second contract was prepared which, in addition to also being devoid of any itemization, provided for a significantly lower cost than the first contract. Thus, the Court does not have sufficient information to determine whether the Plaintiff's payments should be applied to the higher or the lower of the two contracts. Next, although the Court found Defendant's explanation more credible about why there was a trade-off between the costly stone and circular inlay design, the fact remained that it was not constructed as required by the contract. Also, there was no dispute that the pillars lacked brick veneer or that one low pillar and wall were not constructed. Complicating Defendant's claim further was the unexplained disparity between planned pillars and walls, and actual pillars and walls. The original contract called for two low pillars with walls, and four high pillars. The second contract called for four high pillars without mentioning walls or lower pillars. Yet, after construction there were four high pillars and three walls with three lower pillars. Without submitting an itemization of the value of the various project elements, the Court cannot value those items not completed by Defendant. Not even a scintilla of evidence, such as mere testimony by either party about the value of each project element, was provided to the Court. The inconclusive nature of this portion of the evidence requires the Court to resort to speculation, guesswork, and conjecture. Therefore, the Court cannot determine the value of any set-off to any amounts due and owing by the Plaintiff.
CONCLUSION
By reason of the foregoing, it is hereby
ADJUDGED that the Plaintiff did establish by a preponderance of the credible evidence that the Defendant did breach the contract; and it is further
ADJUDGED that the Defendant did establish by a preponderance of the credible evidence that the Plaintiff did breach the contract; and it is further
ADJUDGED that the measure of damages for either party would be speculative because of the failure of each party to provide the Court with an itemization of costs of the project, or such other proof upon which damages can be measured; and it is further
ORDERED that the complaint is dismissed; and it is further
ORDERED that the counterclaim is dismissed.
This is the Order and Decision of the Court.
Dated: September 12, 2012
ANDREW G. TARANTINO, JR.
J.F.C./A.C.C.J..
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