Friedman v Cardinal Sales, Inc.

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Friedman v Cardinal Sales, Inc. 2011 NY Slip Op 32302(U) August 18, 2011 Supreme Court, Nassau County Docket Number: 8621/09 Judge: Michele M. Woodard Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ---------------------- ---- ------------------------------------------------------------------------- )( --- ---------- -------- - --- -- -------- - ---- --- ---)()( [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU RON FRIEDMAN and AMY FRIEDMAN MICHELE M. WOODARD Plaintiffs TRIAL/IAS Part II 8621/09 Motion Seq. No. : 02 & 03 -against - Index No. : CARDINAL SALES , INC. DECISION AND ORDER Defendant. Papers Read on this Motion: Defendant' s Notice of Motion Defendant' s Memorandum of Law Plaintiffs ' Notice of Cross- Motion Defendant's Affirmation in Opposition Defendant' s Reply Affirmation Plaintiffs ' Reply Affrmation Defendant's Sur- Reply In motion sequence number two , defendant , Cardinal Sales , Inc. (" Cardinal" ) moves inter alia pursuant to CPLR 3212 , for an Order of this Cour , granting it summar judgment dismissal of the plaintiffs ' complaint. In motion sequence number three plaintiffs , Ron and Amy Friedman (collectively referred to herein as " Friedman ), cross move for an order inter alia summar judgment on their first and second causes of pursuant to CPLR 3212 , granting them action and dismissing the defendant's counterclaims with prejudice. This is a breach of contract action. Plaintiffs , Ron and Amy Friedman , allege that defendant Cardinal Sales , Inc. , breached it' s contract with them in which the defendant agreed to supply and install kitchen cabinets at plaintiffs ' home as par of a larger renovation project involving construction of the plaintiffs ' home. According to the papers submitted in support of the motions , the facts are as follows: ....................................................,................................................................................. [* 2] Plaintiffs and the defendant entered into an agreement on or about October 26 , 2006 (the Agreement" ). The Agreement was made by Amy Friedman on behalf of the plaintiffs and by Bil Tuotro , Sr. on behalf of the defendant. The Agreement dated October 26 , 2006, states , in pertinent par as follows: (KITCHEN) SUPPLY & INSTALL CUISINE LAURIER CABINETRY AS PER PLAN BASES & TALL CABINETS COLOR MATCH JAY A ON QUARTER SAWN OAK SHAKER NOY- OZ PEA WOOD GRAIN LAMINATE INT DOVETAIL FULL EXT. BLUM MOTION DRAWERS QUARTER SAWN OAK ISLAND CABINETS ALL STAINLESS EXERIOR W/WOOD GRAIN FULL EXTENSION , WALL CABINETS BLUM MOTION PIO LAMINATE INTER. STAINLESS STEEL WITH SANDBLASTED GLASS BULTER PANTRY CABINETS & DOVETAIL DRAWERS WHITE LAM INTERIOR BUTLERS PANTRY HIGH GLOSS LAQUER ON BROADLINE (FLUSH) DOOR MATCH CLIENTS BENJ MOORE SAMPLE COLOR BLUM MOTION , FULL EXT , DOVETAIL DRAWERS Pursuant to this Agreement , the purchaser , Friedman , agreed to pay the total price of $56 980. 60. On that date , Friedman made a deposit for $29 980. 00. Subsequently, on August 27 , 2007 , the paries agreed to the following " Change Order: DOOR PANELS FOR 2 MIELE WARMING DRAWERS ESW4800FB INTEGRA TED 1 FULL DOOR PANEL FOR 15" U LINE 2115WCOL 1 FRAME DOOR PANEL FOR 24" U LINE 2175WCOL CHANGE 2ND SINK AREA The total price for this Change Order was $3 300. 00. Then on Februar 28 , 2008 , the following was added/amended to the Agreement: DIFFERENCE BETWEEN EXISTING CABINET & LARGER CABINET WITH GLASS AND ALUMINM & STAINLESS SIDES NEW CABINET TO BE 36" WIDE FINISHED LEFT SIDE OF CABINET TO RIGHT OF HOOD ($268) BASE 9 Y2 WIDE WOOD , FINISHED ON LEFT SIDE 071.00 NIC $797. [* 3] The total pnce of this amendment/addendum was $2 868. 00. However , pursuant to a revision of this e)(act amendment/addendum , Ron Friedman , stated the following: DIFFERENCE BETWEEN EXISTING CABINET & LARGER CABINET WITH GLASS AND ALUMINUM & STAINLESS SIDES NEW CABINET TO BE 36" WIDE FINISHED LEFT SIDE OF CABINET TO RIGHT OF HOOD ($268) BASE 9 Y2 WIDE WOOD , FINISHED ON LEFT SIDE * Per Bil 071.00 NIC $797. Sr.'s request please deduct $2000 (Two Thousand Dollars) from this invoice. Please call me with any questions. (Signed Ron Friedman) As a result of this change , $2 000. 00 was deducted from the amendment/addendum resulting in the total "price " of the total pnce of the amendment/addendum totaling $868. 00. Ultimately, pursuant to the terms of the Agreement and additional amendments plaintiffs agreed to pay defendant the total sum of$62 388. 00. Furhermore , pursuant to the Agreement , plaintiffs made the following payments to the defendant: $30 000. 00 on or about September 28 , 2006; $27 500. 00 on or about Januar 2008; and $868. 00 on or about March 17 2008. In bringing this action , plaintiffs claim in the Verified Bils of Pariculars dated March , 2010 , that the defendant breached its contract , as follows: defendant supplied and installed inferior laminates rather than stainless steel cabinetry; defendant supplied and installed inferior compressed wood cabinetry; defendant failed to provide a tray divider of acceptable level of quality, additional roll out shelves , a wine cooler panel , wraparound e)(terior steel covers for the lighting fixtures underneath the cabinets; panels to be placed over the appliances and the handles for such panels; defendant failed to properly install the wall cabinets such that they align flush against the wall and secure one of the drawer handles; defendant failed to properly install the panel that was made for the U- Line refrigerator which does not cover the entire refrigerator; defendant failed to properly install the comers of the [* 4] upper cabinets which have e)(posed and non-aligned seams; the handles on two of the upper cabinets which have visible screw holes on the inside of the cabinets when the cabinet doors are open; defendant failed to properly apply the finishing on some of the woodwork which is not aligned properly; and defendant failed to remove the glue from the top of the laminate). These allegations form the basis of plaintiffs ' complaint (and their cross motion for summar judgment) which alleges three causes of action; to wit , breach of contract , breach of waranty and fraud. Defendant denies the material allegations of plaintiffs ' complaint and , in support of it's own motion for summar judgment , argues that due to plaintiffs ' failure to provide any documentar proof to substantiate their alleged estimation of damages in the sum of $150 000. , plaintiffs are unable to prove prima facie case against defendant , thereby precluding sumar judgment against defendant. To the contrar, defendant argues that plaintiffs ' submissions entitle it to summar judgment. Defendant maintains that plaintiffs have been unjustly enriched by their receipt and acceptance of the materials and work , service and labor performed by defendant Cardinal Sales , Inc. and are jointly and severally liable to the defendant in the sum of $4 020. 00 with interest from May 1 2008 , representing the outstanding balance on the contract. On a motion for summar judgment pursuant to CPLR ~3212 , the proponent must make a prima facie showing of entitlement to judgment as a matter suffcient evidence to demonstrate the absence of any Prospect Hasp. 68 NY2d 320 324 (1986); 851 , 853 (1985)). " Failure to make such regardless of the sufficiency of the material issues of fact" of law , tendering (Alvarez v Winegrad v New York Univ. Med Ctr. 64 NY2d prima facie showing requires a denial of the motion opposing papers Winegrad v New York Univ. Med Ctr. supra). (Alvarez v Prospect Hosp. supra; [* 5] Once the movant' s burden is met , the burden shifts to the opposing the e)(istence of a material issue of fact (Alvarez Prospect Hosp. par to establish supra at 324). The evidence presented by the opponent of sumar judgment must be accepted as true and they must be given the benefit of every reasonable inference Management Corp. 34 AD3d 518 , 521 (2d Dept 2006), (Demishick Community Housing citing Secofv Greens Condominium 158 AD2d 591 (2d Dept 1990)). Plaintiffs claim that the chief and primar breach on the defendant's par defendant's alleged failure to supply and install cabinetry with an " all stainless " is the steel e)(terior; plaintiff submits that rather than provide cabinetry with " all stainless " steel e)(terior , the defendant supplied and installed cabinetry with " inferior laminates and/or aluminum e)(terior. Plaintiff also submits that the interior of the cabinetry was to be quarer sawn oak and rather than provide the cabinetry with quarer sawn oak , the defendant supplied and installed cabinetry with an inferior pressed wood interior. Initially, it is noted that plaintiffs fail to substantiate their claims with proof admissible form that , put simply, the cabinets they ordered were not the cabinets they received. Plaintiffs ' allegations as set forth in the affrmation of their attorney are self serving and canot be accorded any credence or weight by this Cour in the absence of an affidavit by an e)(pert qualified to render an opinion as to e)(ternal and internal cabinet material. Moreover , despite plaintiffs ' (unsubstatiated) allegations that the cabinets were improperly installed , this Cour recognizes that plaintiffs ' primar complaint in bringing this action is that the defendant breached the Agreement with them to provide specific goods. Thus , New York' s Uniform Commercial Code- Sales provisions and general contract principles also govern this action. Under these laws , to make out a claim for breach of contract , plaintiff must establish the (1) formation of a contract between plaintiff and [* 6] defendant , (2) performance by plaintiff, damage (3) defendant' s Furia 116 AD2d 694 (2d Dept 1986)). (Furia that there was an Agreement (and subse uent In this case , there is no dispute amendments). Furher , (cf on approval failure to perform , and (4) resulting it is clear that the Agreement herein was a contract of sale - not a sale UCC ~ 2- 326). Pursuant to UCC ~ 2- 601 , a buyer of goods may reject the goods if they fail in any way to conform to the terms of the contract. The rejection must occur within a reasonable time after delivery or tender (UCC ~2- 513) and the buyer is required to seasonably notify the seller" (UCC ~2- 602(1); Inc. 7 Misc.3d 1019(A) (Civ. Ct. Kings Matrix IntI. Textiles, Inc. 2005)). In Jolie Intimates, rejecting the goods the buyer canot merely request a cure , it must perform a " clear and unequivocal act" (Hooper Handling, Inc. Jonmark Corporation 267 AD2d 1075 (4 Dept 1999)). When the meaning of a. contract is plain and clear , the agreement is not to be subverted by straining to find an ambiguity, but is to be enforced (Evans Famous Music Corp. 1 NY3d 452 458 (2004); 98 NY2d 562 , 566 (2002)) and without resort to e)(trinsic evidence Inc. Greenfield according to its terms Philes Records, Inc. (Master-Built Constr. Co., Thorne 22 AD3d 535 , 535 (2d Dept 2005)). Here , the language of the contract and its subsequent amendments is clear. Specifically, the paries ' amendment to the contract , dated Februar 28 , 2008 , confirms two things: first , that with the e)(ception of the noted changes made in said amendment , the plaintiffs otherwise approved the cabinets , if not also their installation , by the defendant. Plaintiffs ' failure to reject the delivery of the cabinets or allege that the cabinets were not the cabinets they selected and ordered at defendant's showroom at the time of the delivery presents an issue of fact as to whether the plaintiffs approved the cabinets they received as the ones they ordered. [* 7] Second , the Februar 28 Change Order also makes clear that the new 36" cabinet that was to be installed was to be placed between the " EXISTING CABINET & LARGER , that not all STAINLESS SIDES"; CABINET WITH GLASS AND ALUMINUM & cabinets (certainly not the " larger one with glass and aluminum ) were " all stainless steel" as the plaintiffs claim they wanted. Some cabinets only had " stainless sides. Without reaching the questions of whether inter alia the plaintiffs ' failure to reject the cabinets constituted their " acceptance " and whether the plaintiffs performed a " clear and unequivocal action " in purortedly rejecting the cabinets they received , this Cour finds that there remains questions of fact as to whether the defendant breached the Agreement with the plaintiffs by providing them with allegedly inferior materials and unsatisfactory work. Defendant's motion for summar judgment is also denied. Defendant argues that there is no evidence that it did not furnish and install the cabinets that were ordered pursuant to the written contract between the paries. While as stated above , there is no admissible evidence of plaintiffs ' claims that the defendant breached its end of the Agreement , in light of the numerous outstanding issues of fact surounding the paries ' Agreement and their consequent behavior supra this Cour denies also defendant's motion for summar judgment. It is hereby ORDERED , that the paries are directed to appear for trial on October 27 , 9:30 a. m. in Central Jur. This shall constitute the decision and order of this Cour. DATED: August 18 2011 Mineola, N. Y. 11501 ENTER: HON. MICHELE M. WOODARD F:\Friedman v Cardinal Sales. wpd ENTERED AUG 23 2011 NASSAU COUNTY COUMT CL!R,K" r'; IGt 2011 at

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