Schanzer v Four Seasons Solar Prods., LLC

[*1] Schanzer v Four Seasons Solar Prods., LLC 2014 NY Slip Op 50802(U) Decided on May 7, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 7, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MARANO and GARGUILO, JJ.
2013-466 S C

Beverly Schanzer, Appellant,

against

Four Seasons Solar Products, LLC Doing Business as FOUR SEASONS HOLBROOK, Respondent.

Appeal from a decision of the District Court of Suffolk County, Sixth District (James P. Flanagan, J.), dated September 20, 2012, deemed from a judgment of the same court entered September 20, 2012 (see CPLR 5512 [a]). The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this small claims action to recover the jurisdictional limit of $5,000 (see UDCA 1801) for an alleged breach of a contract to perform home improvement services.

At a nonjury trial, the contract, dated November 15, 2010, was entered into evidence. The contract provided, among other things, that the cost of the work was $36,200, that the estimated starting date for the project was "as soon as permit is issued," and that events beyond defendant's control, such as "delays by local government authorities in issuing or otherwise approving . . . required authorizations for the work . . . do not constitute abandonment and are not included in calculating time frames for performance by Contractor. Contractor and Buyer(s) have determined that a definite completion date is not of the essence to this Agreement." Plaintiff gave defendant a $7,240 down payment. The contract stated that if the buyer, here, plaintiff, attempted to cancel the contract after the third business day after the date of the agreement, and if the contractor, defendant, accepted the late cancellation, then the buyer agreed to pay the contractor a cancellation fee of 15% of the contract amount. Plaintiff testified that she informed defendant by letter in August of 2011 that she was canceling the contract and demanding the return of her down payment because defendant did not perform the work on her house. It is undisputed that upon plaintiff's cancellation of the contract, which was well after the third business day, defendant returned the sum of $1,810, retaining $5,430, which represented 15% of the contract price. After trial, the District Court dismissed the action.

The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]).

Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court has the opportunity to observe and evaluate the testimony and demeanor of the witnesses, thereby affording it a better perspective from which to evaluate the [*2]credibility of the witnesses (see Vizzari v State of New York, 184 AD2d 564 [1992]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d 125, 126 [2000]).

Plaintiff established that she had tendered a down payment in the amount of $7,240 to defendant, pursuant to a home improvement contract, and that, nine months later, at the time she canceled the contract, construction had not commenced. Inasmuch as there was no provision in the contract that time was to be of the essence (see e.g. Cave v Kollar, 296 AD2d 370 [2002]), the law will imply a reasonable date for performance of the contract (see Savasta v 470 Newport Assoc., 82 NY2d 763 [1993]). "What constitutes a reasonable time for performance depends upon the facts and circumstances of the particular case" (Ben Zev v Merman, 73 NY2d 781, 783 [1988]). In its determination of reasonableness, a court will consider, among other things, "the nature and object of the contract, the previous conduct of the parties, the presence or absence of good faith, the experience of the parties and the possibility of prejudice or hardship to either [party];" (Ben Zev, 73 NY2d at 783).

Here, the contract anticipated a possible delay in obtaining the required permit (see e.g. Raner v Goldberg, 244 NY 438 [1927]). Testimony adduced at trial demonstrated that defendant was in the process of performing its obligations under the contract. Defendant's witness, a permit expediter from a nonparty company retained by defendant, established that her company had applied for a wetlands permit from the Town of Southampton because plaintiff's property was on the water. The witness testified that the application underwent a preliminary review by the Town, which was requiring an updated survey, and that, in her expert opinion, the length of time for processing the application was not unexpected. Consequently, defendant demonstrated that, in light of the actions required to obtain the wetlands permit, the amount of time that defendant was spending to perform its obligations under the contract was reasonable (see e.g. Escobar v Gonzalez, 277 AD2d 93 [2000]). Plaintiff failed to rebut defendant's showing or establish that the contract could have been canceled on the ground of illegality, since there was no testimony that defendant was unable to obtain a wetlands permit. As the record supports the District Court's determination that plaintiff improperly canceled the contract, we find that the judgment provided the parties with substantial justice according to the rules and principles of substantive law (see UDCA 1807; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d at 126).

Accordingly, the judgment is affirmed.

Nicolai, P.J., Marano and Garguilo, JJ., concur.

Decision Date: May 07, 2014