Concord Sq. Homes Assn., Inc. v Ontario Pool Supply, Inc.
Annotate this CaseDecided on May 2, 2013
City Court of Canandaigua
Concord Square Homes Association, Inc., Plaintiff,
against
Ontario Pool Supply, Inc., Defendant.
SC-000075-13/CA
Appearances:Plaintiff:Robert Marvin, Realty Performance Group, Inc.
Defendant: Merkel & Merkel, David A. Merkel, Esq., of counsel, with
David Ott, President
Stephen D. Aronson, J.
This small claims case presents the issue of whether a painting contractor is able to recover the contract price where the contract for painting a swimming pool was substantially performed but where there was minor flaking around the fittings and steps.
The plaintiff (owner) seeks $3,339.50 from the defendant (contractor). A counterclaim was filed on March 20, 2013, wherein the contractor seeks $2,500 from the owner. A hearing was held on April 18, 2013. The undisputed evidence showed that the parties entered into a written agreement whereby the contractor agreed to paint the owner's swimming pool. The parties agreed that the owner would pay the contractor the sum of $4,000. At the time the contract was executed, the owner's property manager was Kenrick Corporation (Kenrick). The contractor painted the swimming pool, and there were problems with the paint flaking. After a determination of the cause of the flaking, the contractor agreed to repaint the swimming pool after removing the paint underneath. The owner's new property manager Realty Performance Group, Inc. (Realty Performance) found ongoing problems with the paint job. The owner elected to seek someone else to correct the paint job and has paid the contractor $1,500 of the $4,000 contract price. The owner contends, in words or substance, that the contractor breached the contract by not performing the job in a workmanlike manner; that the contractor should pay the owner the cost of having an independent engineer look at the pool coating ($300), attorney fees of $885.50 and $154, and $500 for 10 hours of management services at $50 per hour and that the contractor should return the $1,500 it was paid. The contractor contends, in words or substance, that it performed as required by the contract. It painted the pool, and after the flaking occurred, it repainted the entire swimming pool after removing the paint underneath. It contends that the only defect remaining in the swimming pool was failure of the paint to adhere around some of the fittings and around the steps; that these problems could easily be corrected if the owner had not refused to allow the contractor to finish its warranty work; and that it should be paid the $2,500 [*2]balance of the contract.
In every small claims case, the court is bound to perform substantial justice to the parties in accordance with principles of substantive law (Uniform City Court Act § 1804). The enforcement of a construction contract necessarily involves the applicability of the doctrine of substantial performance, i.e., not whether a party has literally complied with the contract, but whether it has substantially done so (Jacob & Youngs, Inc. v. Kent, 230 NY 239 [1921]). When the omission is slight and unintentional, in order to prevent the hardship of a failure to recover for work otherwise well done, a small deduction may be made from the contract price (Dickinson v. Sheldon, 146 AD 144 [4th Dept 1911]). In order to recover for substantial performance, the contractor must establish that its failure to perform was inadvertent or unintentional and that the defects were insubstantial (Sear-Brown Assoc. v. Blackwatch Dev. Corp., 112 AD2d 765 [4th Dept 1985]) (not insubstantial where the contractor allocated $800 or 13% of the contract price for the remaining work).
In this case, the owner's representative admitted at the hearing, in words or substance, that the ongoing flaking around the fittings and the steps represents only about 1% of the total job. In other words, the contractor has substantially performed about 99% of the job to the satisfaction of the owner. Under the foregoing principles of law, and given the fact that the owner has refused to allow the contractor to complete its warranty work (which it was willing to do), the defect is deemed insubstantial, and the contractor is entitled to recover the balance of the contract price. Under New York law, where the doctrine of substantial performance is applicable, deductions may be made from the contract price for small omissions or defects in the work occurring in good faith (Van Orden v. MacRae, 121 AD 143 [2d Dept 1907], affd 193 NY 635 [1908]). Here, there was no evidence presented by either party about the cost of correcting the defect. However, given the contract price of $4,000 and given the minor amount of painting that needs to be done around the fittings and the steps, substantial justice to the parties would be accomplished by deducting $200 from the contract price.
Judgment for the defendant for $2,300 plus the $20 filing fee, and the counterclaim is dismissed.
ENTERED: Canandaigua, New York
DATED: May 2, 2013
/s/ Stephen D. Aronson
Hon. Stephen D. Aronson
City Court Judge
"An appeal from this judgment must be taken no later than the earliest of the following dates: (i) 30 days after receipt in court of a copy of this judgment by the appealing party, (ii) 30 days after personal delivery of a copy of the judgment by another party to the action to the appealing party (or by the appealing party to another party), or (iii) 35 days after the mailing of a copy of the judgment to the appealing party by the clerk of the court or by another party to the action." [*3]
Exhibits will be held for 30 days, at which time they will be destroyed if not picked up.
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