Habilis Design, LLC v Hirtenstein

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Habilis Design, LLC v Hirtenstein 2011 NY Slip Op 32379(U) August 24, 2011 Sup Ct, NY County Docket Number: 113988/2009 Judge: Louis B. York 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 - N E W YORK COUNTY PART d/ MOTION DATE -vMOTION SEQ. NO. MOTION CAL. NO. __ .. The following papers, numbered 1 to were read on this motlon tolfor PAPER$ NUMBERD Notice of Motion/ Order to Show Cause - Affidavits - Exhibits Answering Affidavits ... - Exhlbita Replying Affldevlts Cross-Motion: Yes 0 No Upon the foragolng papers, It is ordered that this motlon Check one: 0 FINAL DISPOSITION NON-FINAL DISPOSITION c REFERENCE ] 0 DO NOT POST 0 SETTLE ORDER/ JUDG. SUBMIT ORDER/ JUDG. Check if appropriate: [* 2] Index N o . : Plaintiff, 113988/2009 -against- MICHAEL HIRTENSTEIN and INTERNATIONAL FIDELITY INSURANCE COMPANY, Defendants. P l a i n t i f f H a b i l i s Design, LLC moves, pursuant to CPLR 3212, P l a i n t i f f i s a n i n t e r i o r d e s i g n and d e c o r a t i n g firm l o c a t e d in New Y o r k , N e w Y o r k . plaintiff. I Aaron K i r s t e n ( K i r s t e n ) i s a p r i n c i p a l o f On April 7 , 2 0 0 9 , K i s s t e n p r o v i d e d a p r o p o s a l t o d e f e n d a n t f o r t h e p e r f o r m a n c e o f interior decorating and d e s i g n ' T h i s a c t i o n p r o c e e d s a g a i n s t Michael H i r t e n s t e i n a s t h e sole defendant. -1- [* 3] in New Y o r k . The proposal given to defendant in April 2009 was a standard contract used by the American Society of Interior Designers. Pursuant to the contract, plaintiff was to provide the following design services: a survey of the existing conditions, determine design preferences, an initial design study, preparation of drawings to illustrate designs, preparation of interior design concepts which included "color schemes, interior finishes, wall coverings, f l o o r coverings, ceiling treatments, lighting treatments and window treatments," layouts showing furniture and furnishings, schematic plans for proposed cabinet and other installation work. Kirsten Affidavit, ¶ 7. Plaintiff, according to the contract, was able to purchase decorating items and act as an intermediary on defendant's purchasing on behalf of clients, in pertinent part: Merchandise and Interior Installations to be purchased through Designer will be specified in a written Proposal prepared by Designer and submitted in each instance f o r Client's written approval. Each Proposal will describe the item and its price to Client (FOB point of origin) ("Client Price"). The Client Price for each item of Merchandise and Interior Installations includes a fee for services rendered in this p h a s e of the Project. *** No item can be ordered by Designer until the Proposal has been approved by Client, in writing, and returned to Designer with f u l l payment. Delivery, shipping, handling charges, applicable taxes, are payable when the item is ready for delivery to and/or installation at Client's residence, or to a subsequent supplier f o r -2- [* 4] further w o r k upon rendition of Designer's invoice. Plaintiff's Exhibit C, at 4. Additionally, pursuant to the contract, plaintiff was to receive a non-refundable deposit prior to commencing services. On April 15, 2009, defendant made some revisions to the contract and sent it back to plaintiff. On April 16, i O O 9 , defendant's proposed revisions were incorporated into the contract. On April 28, 2009, defendant e-mailed Kirsten that he was accepting the proposal. Specifically, defendant e-mailed, in pertinent part: Aaron, e-mail me and lacey the agreement and a s k her to print and I will sign and get it back to you with a check today. Thanks for all the effort without even having this . . . . As for the furniture layouts, can you possibly get it to me by today/tomorrow since we may be o f f to Capri on thurs f o r a long weekend and I want to really'lock things up by then? Also can you include an inventory of all the furniture, art, rugs, etc and what pieces you want to use and what ones you think shouldn't be there. Plaintiff's Exhibit D. According to Kirsten, after this e-mail, he "purchased numerous items" on behalf of defendant and completed the p r o j e c t daround mid-June 2009. ? 2 .' On June 15, 2009, KZi7i, -%k:L defendant moved into the apartment. Kirsten contends that after the defendant moved in, defendant requested that Kirsten purchase some minor additional items. On June 22, 2009, defendant e-mailed Kirsten that he was -3- [* 5] satisfied with plaintiff's services. The e-mail s t a t e s the following: Also, Christina and I wanted to thank you, not just by paying your bills, but more personally ....would you and your boyfriend like to stay in bridgehampton this coming weekend with us and a few friends? They may even be possible new business. Also, I want to redesign my yard so maybe you want to get involved some how? ' Plaintiff's Exhibit F. On June 27, 2009, defendant's fianc4, Christina Hale (Hale) arrived at defendant's home unexpectedly and allegedly found Kirsten involved in a sexual encounter with another man. Defendant immediately terminated plaintiff's services at this point. Kirsten followed up with an e-mail to defendant apologizing for his behavior. Hale s t a t e s that after the incident with Kirsten she "never again felt comfortable in that office or t h e Apartment." Hale Affidavit, ! 11. I Hale continues that due to her discomfort, she and defendant moved out of the apartment. On J u l y 7, 2 0 0 9 , plaintiff delivered an invoice to defendant in the amount of $78,057.76. The invoice l i s t s , in detail, the merchandise purchased on defendant's behalf, the design fees and other expenses. The expenses were mostly for purchases and services provided p r i o r to June 27, 2009, with a few items being listed as being purchased on June 29, 2009. Defendant did not respond to this invoice. -4- On August 18, [* 6] On 2009, plaintiff filed a mechanic's lien against the premises. October 1, 2009, p l a i n t i f f filed a complaint with five causes of action, including foreclosure of the bond, breach of contract, account stated, unjust enrichment and quantum meruit. On October 22, 2009, defendant arranged for the discharge of the lien by filing a bond. In August 2010, defendant answered the complaint and set forth a counterclaim that plaintiff "willfully exaggerated the amount f o r which it claimed a lien w i t h i n the meaning of Lien Law 39-a." Plaintiff's Exhibit B, ¶ 22. Defendant is seeking to be reimbursed for the fees he incurred in discharging the lien. He then filed a motion to dismiss the con'tplaint. On J u l y 1, 2010, this court issued an order dismissing plaintiff's first cause of action. The court noted that plaintiff claimed to have filed the mechanic's lien in error, and that it is no longer pursuing the action to foreclose the mechanic's lien. The court denied the part of the defendant's motion seeking to dismiss the other causes of action. Now, plaintiff moves, pursuant to CPLR 3212, for an order granting summary judgment on its second and third causes of action, and also on defendant's first counterclaim. Plaintiff contends that it performed its services pursuant to a contract, and that it is therefore entitled to its fees. Plaintiff disputes the events that occurred on June 27, 2009, -5- [* 7] however, it maintains that, even if something inappropriate took p l a c e , this did not negate the defendant's responsibility to pay the invoice. Defendant contends that Kirsten's deposition is still outstanding, and that this should preclude summary judgment at ' this time. Defendant further alleges that there are triable issues of fact that remain with respect to the a c c o u n t stated and the breach of contract c a u s e s of action. Additionally, defendant contends that all of plaintiff's causes of actions may be barred since plaintiff is not licensed as a home improvement contractor. DISCUSS ION I J. Summarv Jiidment : "The proponent of a motion for summary judgment must ~ demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law." Dallas-Stephenson v W a i s m a n , 39 AD3d 3 0 3 , 306 ( I a tDept 2 0 0 7 1 , citing W i n e g r a d v New York Univ. Med. C t r . , 64 NY2d 851, 853 (1985). Upon proffer of evidence establishing a prima facie case by the movant, "the party opposing a motion for summary judgment bears the burden of 'produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact."' People v Grasso, 5 0 AD3d 535, 5 4 5 ( I a t Dept 2 0 0 8 ) , quoting Zuckerrnan v C i t y of N e w York, 4 9 NY2d 557, 562 (1980). The function of the court is one of issue finding, n o t issue -6- [* 8] determination. Ferrante v American Lung A s s n . , 90 NY2d 623, 630 (1997). IT, Breach of Contract; Defendant argues that plaintiff failed to meet i t s burden with respect to the breach of contract cause of action, and, as such, plaintiff should not be 'granted summary judgment. Specifically, defendant alleges that plaintiff relies on a single invoice, without providing any evidence that it purchased items for the apartment. Defendant also contends that plaintiff has not provided proof that, pursuant to the contract, defendant approved in writing any of the purchases f o r merchandise. Defendant further maintains, among other things, that Kirsten's alleged misconduct has "materially" breached the agreement, including the "implied covenant of good faith and fair dealing." Defendant's Memorandum of Law, at 8. Plaintiff claims that it performed the services pursuant to the agreement and that it is entitled to its fees. Defendant did not object to these fees once it received the invoice. Plaintiff further maintains that defendant's admission via e-mail that plaintiff is entitled to its fees thereby ratifies the amounts given on the invoice. The elements of a b r e a c h of contract claim are: (1) the existence of a valid contract (2) performance of the contract by the injured party; (3) b r e a c h by the other p a r t y ; and ( 4 ) -7- [* 9] Morris v 702 E a s t Fifth S t r e e t HDFC, 46 AD3d resulting damages. 4 7 8 , 4 7 9 ( l S Dept 2 0 0 7 ) , citing F u r i a v Furia, 116 A D 2 d 694 (2d t Dept 1986). AS previously mentioned, the purchasing section of the contract provides that p r i o r to purchase, items must be submitted to the client f o r written approval. The recorded e-mails provided to the court appear to demonstrate that plaintiff informed defendant a b o u t the items it intended to p u r c h a s e and then received verification from defendant via e-mail. However, there is no documentation verifying that defendant had an opportunity to see the costs of the merchandise before the purchase or had an opportunity to agree in writing. Moreover, in support, defendant states that plaintiff "was not authorized to order any items unless I had approved its proposal in writing and on this motion, Habilis presents no evidence that I had approved in writing purchases of any of the items for which it seeks compensation." Hirtenstein Affidavit, ¶ 11. In considering a summary judgment motion, evidence should be viewed in the "light most favorable to the opponent of the motion." People v Grasso, 50 AD3d at 544, citing Marine M i d l a n d Bank, N.A. v Dino & 610 ( 2 d Dept 1990). A r t i e ' s A u t o m a t i c Transmission Co., 168 A D 2 d Due to this discrepancy between whether or n o t plaintiff complied with the purchasing section of the contract, summary judgment cannot be granted on this cause of -8- [* 10] [Aln account balanced and rendered, with an assent to the balance express or implied; so that the demand is essentially the same as if a promissory note had been given f o r the balance ... Judge Cardozo wrote that t h e very meaning of an account stated is that the parties have come together and agreed upon the balance of indebtedness, i n s i m u l cornputassent, s o that an action _ _ recover the balance as upon an implied promise of payment may thenceforth be maintained. ~ The receipt and retention of an account, without objection, within a reasonable period of t i m e , coupled with an agreement to make partial payment, gives rise to an account stated entitling t h e moving p a r t y to summary judgment in its favor [internal quotation marks and citations omitted]. Morrison Cohen S i n g e r 355-356 & Weinstein, LLP v Ackerman, 2 8 0 AD2d 355, (lst Dept 2 0 0 1 ) . Applying the above law to the facts at hand, the court finds that the plaintiff is able to set forth a cause of action for an account stated. most of the interior decorating services pursuant to its contract with defendant prior I -9- . [* 11] Kirsten detailed defendant's satisfaction with plaintiff's work and his intent to pay the bill. Evidently defendant did pay the nonrefundable deposit p r i o r to the start of plaintiff's services. It is undisputed that plaintiff's services were terminated on June 27, 2009. from plaintiff. On July 7, 2009, defendant received an invoice H e did not pay this invoice nor boice any complaints with the invoice. In f a c t , defendant did not respond in any way to the invoice until he answered plaintiff's complaint in August 2010. Defendant's arguments for why an account stated is not present are unavailing. For instance, defendant claims that he objected to the account stated in writing. Defendant is referring to the blank e-mail he sent to Kirsten which solely had "Ywhsnxjxjj s " as its subject line. Defendant's Exhibit B. Defendant claims that he sent Kirsten this e-mail, "concerning Habilis' invoice and its Conduct." Law, at 12. Defendant's Memorandum of This vague e-mail, with simply a meaningless subject heading, does not demonstrate any objection to the invoice. Even if it could possibly be seen as an objection, it was sent in September 2010, which was over a year from the receipt of the invoice. Defendant a l s o argues that plaintiff cannot prevail on an account stated since plaintiff sent the bill after the relationship deteriorated. However, the cases c i t e d to by -10- [* 12] defendant, which include Bernstein v Tisch ( 1 0 2 AD2d 7 7 8 , 7 7 9 In B e r n s t e i n [lstDept 1984]), do not bolster defendant's case. v T i s c h , where an interior decorator was fired before rendering his bill, the Court did not find that there was an account stated accurdte. Moreover, the Court noted that the "defendants terminated plaintiff's services before completion." Id. In the present case, the record indicates that plaintiff performed the bulk of the services prior to being terminated and that the plaintiff and defendant maintained a good relationship prior to this point. Plaintiff submitted a detailed invoice, not an approximation, to defendant, who did not dispute this invoice.2 IV. Defendant ' s F i r s t Counterclii~m: Defendant argues that he should be permitted to recover the fees he incurred as a result of discharging the mechanic's lien, previously filed by plaintiff. Plaintiff seeks to have this counterclaim dismissed. There is no longer a lien on the property. The c o u r t has already determined in the prior motion that the plaintiff's first cause of action to foreclose on the property is dismissed. The c o u r t also noted that plaintiff admitted to filing t h e mechanic's 2 Apparently some of the charges on the invoice occurred after plaintiff was undisputedly fired. As such, these charges are not a part of the payment owed to plaintiff. -1 1- [* 13] lien in error, and as such, it was not a "willful" exaggeration of the lien. Accordingly, defendant cannot show any basis f o r retrieval of the fees incurred, and the plaintiff is granted summary judgment dismissing the first counterclaim. v. Out$ tanm a Discoverv: Defendant argues that the plaintTff's motion is premature since Kirsten h a s not yet been deposed. However, defendant cannot defeat summary judgment on the account stated cause of action by claiming a lack of discovery. Defendant has not shown that any facts exist, especially regarding Kirsten's alleged conduct, which cannot be stated at this time, which w o u l d defeat summary judgment. F r i e r s o n v Concourse P l a z a Associates, 189 . AD2d 609, 610 (latDept 1 9 9 3 ) , citing CPLR 3 2 1 2 (f) >~m tus V wept me CQntra ctor: Defendant argues that the motion for summary judgment should be denied since plaintiff may have been required to be licensed as a home improvement contractor prior to providing services to See e . g . Gordon v Adenbaum, 171 AD2d 841, 841 (2d defendant. Dept 1991) ("It is well settled that not being licensed to practice in a given field which requires licensure precludes recovery for the services performed, either pursuant to contract or in quantum meruit [internal quotation marks and citations omitted] " ) . This court previously n o t e d that plaintiff "does not appear -12- [* 14] to exceed professional offerings of an interior designer" and would not require a home improvement license. See H a b i l i s D e s i g n LLC v H i r t e n s t e i n , 2 0 1 0 WL 2897840, 2010 NY Misc LEXIS 3238 (Sup Ct, NY County 2010). It noted that plaintiff's work might not constitute statutory home improvement, and aligned plaintiff's situation with that of F r a n k v Sobel (38 AD3d 229, 230 [ l s tDept 20071). The Court in Frank v Sobel stated the following: If it is indeed established that plaintiff supervised the implementation of his own designs for aesthetic purposes, and never performed or supervised any services that required the expertise of a licensed professional, the fact that he is not a licensed architect or home improvement c o n t r a c t o r would not b a r recovery of his fee. Id. at 230. This court has already sufficiently addressed the parties' contentions in the prior motion to dismiss, and does not find that any new evidence has been set forth by defendant to allege that plaintiff may not recover for its fees due to a l a c k of license. For instance, defendant's conclusory allegations, such as the fact that plaintiff may have been involved in the contractors' work, are not enough to defeat the motion for summary judgment . CONCLUSION Accordingly, it is ORDERED that plaintiff Habilis Design, LLC's motion for summary judgment on its account stated cause.of action is -13- [* 15] granted, and s u c h a claim is severed. is $ 7 8 , 0 5 7 . 8 6 . However, t h e invoice total But Exhibit E to the plaintiff's moving papersincluded six items that were purchased on June 29, 2009, two days after plaintiff was fired. The amount of those purchases must be deducted from the t o t a l . They add up to $2,894.90. Therefore, the Clerk of the Court is directed to enter judgment in favor of Habilis Design, LLC, and against defendant Michael Hirtenstein in the amount of $75,162.96 together w i t h costs and disbursements to be taxed by t h e Clerk upon submission of an appropriate bill of costs; and it is further ORDERED that the portion of plaintiff's action seeking summary judgment dismissing defendant's first counterclaim is granted; and it is further ORDERED t h a t the portion of plaintiff's action seeking summary judgment on the breach of c o n t r a c t cause of action is denied; and it is further ORDERED that the remainder of the action shall continue. ENTER : FILED NEW YORK C O U N n CLERK'S OFFICE -14-

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