Ricca v Samhal Interiors, Inc.

[*1] Ricca v Samhal Interiors, Inc. 2009 NY Slip Op 51338(U) [24 Misc 3d 129(A)] Decided on June 25, 2009 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 25, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., MOLIA and NICOLAI, JJ
2008-1254 S C.

Jane Ricca, Respondent,

against

Samhal Interiors, Inc. d/b/a SAMHALL INTERIOR DESIGN, Appellant.

Appeal from a judgment of the District Court of Suffolk County, Third District

(C. Steven Hackeling, J.), entered February 14, 2008. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,037.50.

Judgment reversed without costs and judgment directed to be entered dismissing plaintiff's action.

Plaintiff commenced this small claims breach of contract action to recover the sum of $5,000 which she had paid to defendant. At the nonjury trial, plaintiff testified that she had entered into an interior design contract with defendant on February 28, 2007. The contract provided that defendant's $5,000 retainer fee was not refundable unless defendant withdrew its services prior to the completion of the project. The
services to be provided by defendant were broken up into two separate sections in the contract. The first section, entitled "Design Concept Services," stated that defendant would, inter alia, measure the space in plaintiff's apartment, prepare sketches and/or take photos of existing interiors, discuss plaintiff's needs and preferences, prepare a furniture floor plan and make a preliminary selection of color schemes and fabric choices. The second section of the contract, entitled "Purchasing Service," provided that "[u]pon approval of the preliminary selections mentioned above, [defendant] would prepare specifications and pricing proposals" (emphasis added). It further provided that any items purchased by plaintiff would "require [plaintiff's] signed authorizations, as well as 50% of the total price for deposit." It should be noted that the contract had neither a completion date nor any indication that time was of the essence. In addition, the contract contained a clause which stated that defendant would charge an extra $75 per hour for any additional services requested by plaintiff which were beyond the scope of [*2]service outlined in the contract.

It is uncontroverted that defendant showed plaintiff various samples of wall colors and fabric for furniture as well as different styles of furniture for her apartment and that plaintiff rejected some of defendant's samples and ideas. It is also uncontroverted that representatives from defendant came to her apartment several times to inspect and to take measurements. Defendant's representatives testified that they had spent many hours working on plaintiff's project, and they submitted an abstract of their work product into evidence, which included samples, plans, time logs, etc. They further testified that plaintiff had been unable to make any decisions regarding which furniture she would like ordered, whether she wanted the apartment wallpapered or painted, etc., and that they could not move forward with the project without those decisions being made. Plaintiff testified that she was upset because the project was taking so long and, on August 2, 2007, she had sent defendant a letter informing it that she was terminating the contract and requesting the return of her retainer fee. At the conclusion of the trial, the District Court awarded plaintiff the principal sum of $2,037.50. It arrived at this amount by multiplying the number of hours defendant proved it had worked on the project (39.5) by $75 and then subtracting that amount ($2,962.50) from the $5,000 retainer fee paid by plaintiff.

Upon a review of the record, we are of the opinion that the judgment in favor of plaintiff did not render substantial justice between the parties in accordance with the rules and principles of substantive law (UDCA 1807). There is no evidence that defendant breached the contract. Indeed, the record supports a finding that defendant fully performed the "Design Concept Services" portion of the contract and that it could not complete the "Purchasing Service" portion of the contract because plaintiff failed to make the necessary decisions to enable defendant to proceed. Consequently, plaintiff was not entitled to the return of any portion of the retainer fee which she paid to defendant (see generally Gold v Charlotte Finn Inc., 228 AD2d 552 [1996]). Accordingly, the judgment is reversed and plaintiff's action is dismissed.

Rudolph, P.J., Molia and Nicolai, JJ., concur.
Decision Date: June 25, 2009