Higgins & Higgins Inc. v Langenkamp

[*1] Higgins & Higgins Inc. v Langenkamp 2009 NY Slip Op 50369(U) [22 Misc 3d 1130(A)] Decided on February 13, 2009 Supreme Court, Westchester County Smith, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 13, 2009
Supreme Court, Westchester County

Higgins & Higgins Inc., Plaintiff,

against

Bruce Langenkamp & Katie Langenkamp, Defendants.



16668/08



Raymond S. Carroll, Esq. Atty. For Pltf.

119 Rockland Center, Suite 425

Nanuet, New York 10954

Rende Ryan & Downes, Esqs.

Attys. For Defts.

202 Mamaroneck Ave.

White Plains, New York 10601

Mary H. Smith, J.

This is an action relating to the sale and installation of a slate roof and gutter system for the price of $44,210.00. The original contract had been entered into between the parties on March 14, 2005, and thereunder defendants had paid a deposit of $14,750.00. Defendants homeowners contend that at the time of contracting, plaintiff had been made aware that additional time was required before the roof could be installed, as defendants first needed to obtain building permits and construct the new roof as part of a home renovation project. The contract does not include a firm start or completion date, but does expressly provide that "Prices are subject to change after 30 days."

Due to various delays, defendants were not ready for the roof/gutter installation until March, 2008. At that time, plaintiff's principal, Kevin Higgins, wrote defendants advising that material price increases in the past three years required a revised fee for the project, now totaling $57,550.00; he requested that defendants approve this "change order." The parties thereafter met at the property and defendants told Mr. Higgins that his new pricing did not reflect the significant project changes that had occurred during the interim period and defendants had suggested that plaintiff return their money and they would re-bid the project. Instead, Mr. Higgins wrote defendants, advising that the contract had included a three-day rescission date, that plaintiff has been ready, willing and able throughout the intervening three-year period to perform the work and that material prices have substantially risen. If defendants did not want plaintiff to perform under the contract, Mr. Higgins advised them [*2]that, rather than suing defendants for the full contract amount of $44,210, his "one time offer" was for defendants to agree to pay plaintiff's overhead and profit calculated on the 2005 contract rate, i.e., $15,340. Defendants had refused and this litigation, wherein plaintiff has sued for breach of contract [FN1] and defendants have counterclaimed alleging plaintiff's breach of contract and Lien Law Section 71-a, as well as conversion and unjust enrichment, thereupon ensued.

The parties each are moving for summary judgment in their favor.

Unambiguous contract terms will be afforded their clear meaning and whether a contract is ambiguous and/or whether a material term is missing are questions of law to be determined by the Court. See 4 South Road Associates, LLC v. Intern. Business Machine Corp., 4 NY3d 272, 278 (2005). Price is a material contract term and a contract will not be enforced where the price is left for a future date, unless the contract provides a method of ascertaining the price:

Where at the time of agreement the parties have

manifested their intent to be bound, a price term

may be sufficiently definite if the amount can be

determined objectively without the need for new

expressions by the parties; a method for reducing

uncertainty to certainty might, for example, be found

within the agreement or ascertained by reference

to an extrinsic event, commercial practice or trade

usage. A price so arrived at would have been the end

product of agreement between the parties themselves. Cobble Hill Nursing Home, Inc. v. Henry and Warren, 74 NY2d 475 (1989).

Here, a plain reading of the parties' contract reveals that the agreed upon price is specifically set forth and that no provision exists for any price changes dependent upon changes in the project itself due to design or size or any other work order change, as here apparently had occurred. Also, no definite start work date is specified in the agreement and no mention is made of the fact that it apparently had been expected from the outset that this project would be delayed, and it further is not clear whether the parties had anticipated a delay of the magnitude that here had occurred. The evident problem with the contract is the inclusion [*3]of the provision that prices were subject to change after 30 days, with no stated basis for determining or limiting the price change. Plaintiff's asserted position is that the "prices are subject to change after thirty days" clause means that, once the contract is executed, if it is not performed within thirty days, the price for the work could be increased. The Court finds however that a more reasonable interpretation of this clause, and the one properly to be drawn against the drafter of the subject contract is that, in the event that the contract is not executed within thirty days, plaintiff's offer to do the work at the stated price is not binding. This proper interpretation does not support plaintiff's position herein.

Even were the Court to accept plaintiff's interpretation of the clause, however, plaintiffs still do not prevail. The proposed price change constitutes a 30 percent increase of approximately $14,000 from the price that originally had been agreed upon. Nothing before this Court supports a finding that such a large price increase had been in the contemplation of the parties at the time they had contracted. Cf. Henri Associates v. Saxony Carpet Co., 249 AD2d 63 (1st Dept. 1998).

Accordingly, after this Court's careful review of the papers before it, the parties' respective arguments and the applicable law, this Court thus finds that plaintiff's insistence on what amounts to a 30 percent price increase based upon the pricing being subject to a change provision was untenable, and that plaintiff's insistence that defendants adopt this interpretation as a condition to plaintiff's proceeding to perform constituted an anticipatory breach of the contract. See IBM Credit Financing Corp. v. Mazda Motor Mfg (USA) Corp., 92 NY2d 989 (1998); Salomon v. Angsten, 19 AD3d 143 (1st Dept. 2005); BT Triple Crown Merger Co., Inc. v. Citigroup Global Markets Inc., 19 Misc 3d 1129(A) (Sup. Ct. NY Co. 2008).

Defendants shall submit within twenty (20) days after the date hereof a proposed judgment on notice which shall provide for summary judgment in their favor dismissing the complaint and, given that no work has been performed or materials furnished, for the full return of defendants' deposit, in accordance with Lien Law Section 71-a, to wit, the sum of $14,750. However, the Court does not award defendants interest thereon, as no legal basis has been established herein for the awarding of same. Further, no award is made to defendants for legal fees. Counsel fees are incidents of litigation which a prevailing party may recover only if same is authorized by an agreement between the parties, statute or Court rule. See Mighty Midgets v. Centennial Ins. Co., 47 NY2d 12, 21-22 (1979); Ajar v. Ajar, 207 AD2d 469 (2nd Dept. 1994); Durante Bros. [*4]Construction Corp. v. College Point Sports Assoc., Inc., 207 AD2d 379, 380 (2nd Dept. 1994); Wu v. Kao, 194 AD2d 666 (2nd Dept. 1993). None of the foregoing basis have been established as being applicable here.

Dated: February 13, 2009

White Plains, New York

_________________________________

MARY H. SMITH

J.S.C. Footnotes

Footnote 1:Plaintiff had requested damages of only $29,460, which sum apparently excludes the deposit of $14,750, to which plaintiff apparently had deemed itself entitled.