Koral Bros., Inc. v East End Wine Cellars, LLC

[*1] Koral Bros., Inc. v East End Wine Cellars, LLC 2013 NY Slip Op 51051(U) Decided on June 28, 2013 County Court, Suffolk County Tarantino Jr., 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2013
County Court, Suffolk County

Koral Brothers, Inc., Plaintiff(s),

against

East End Wine Cellars, LLC, Defendant(s).



031587/2010



Benjamin Carter, Esq

Attorney for Plaintiff

220 Roanoke Ave

Riverhead NY 11901

(631)727-1666

Frank Blangiardo, Esq

Attorney for Defendant

25425 Main Rd PO Box 1169

Cutchogue NY 11935

(631)734-1111

Andrew G. Tarantino Jr., J.

NATURE OF THE ACTION

Plaintiff, KORAL BROS, INC., commenced this action by filing a Summons and Verified Complaint on August 24, 2010. Alleging breach of contract, Plaintiff claimed that it advanced to Defendant $28,036.00 for services and materials which Defendant did not deliver. In its Verified Answer filed October 5, 2010, Defendant EAST END WINE CELLARS, LLC, [hereinafter, EEWC] denied every allegation, set forth six affirmative defenses, and alleged a counterclaim for $30,000.00 claiming that Plaintiff did not pay for any of the custom design and planning. Plaintiff filed a Verified Reply dated October 12, 2010. On July 20, 2012, the action was transferred to this Court, pursuant to NY Civ. Pract. Laws & Rules §325(d). A trial without jury was conducted on June 26, 2013. [*2]

TESTIMONY

Plaintiff's only witness was Anthony DiResta, Plaintiff's project manager at the subject construction site. As part of the new home construction, a wine cellar was to be built. Plaintiff approached an initial vendor who submitted a proposal with plans on August 13, 2009. DiResta testified that he then contacted EEWC. Plaintiff admitted into evidence EEWC's wine cellar drawings dated November 25, 2009. On December 16, 2009, EEWC provided Plaintiff a proposal totaling $85,545.00. The proposal was not itemized. DiResta said that Plaintiff accepted EEWC's proposal. On December 30, 2009, EEWC requested a $15,000.00 "price holding" deposit for the wine racks and cabinetry. DiResta was told that there would be a price increase by the manufacturer effective that January 1st, and the deposit would lock-in the current price. Plaintiff sent the $15,000.00 deposit on December 31, 2009 which EEWC deposited into its account. Then, on February 4, 2010, EEWC requested a 50% deposit of $23,412.50 for wine racks and associated mill work. On that invoice, EEWC credited Plaintiff with the December 2009, $15,000.00 deposit, resulting in a net deposit due of $8,412.50. On March 4, 2010, Plaintiff paid the $8,412.50 which EEWC deposited into its account. Two additional invoices were sent to Plaintiff. The first was for a deposit of $4,623.50 for the base cabinet, which Plaintiff paid on February 4, 2010. The second was for a deposit of $12,900.00 for soffit and base framing, assembly of racks, shipping and labor. Again, Plaintiff paid that invoice on February 11, 2010. DiResta then testified about email exchanges he had with EEWC. After inquiring on the progress of the wine cellar, on April 6, 2010, EEWC told DiResta it would be at the site that day and that the framing and paneling would be finished in 4-5 days. On May 26, 2010, DiResta complained to EEWC that no substantial work had been done since May 17th, holes were not drilled for lights, and there were issues with the base cabinet and appliances. DiResta notified EEWC in that email that Plaintiff was on a very tight schedule to finish the project. EEWC responded June 2 by merely stating "please contact [me]." On June 4, 2010, EEWC said it would be on-site on June 8th to finish the wine cellar interior. Immediately, DiResta responded by informing EEWC that there was a problem with the design of the base cabinets. DiResta testified that EEWC constructed the soffit height at 106 inches instead of 96 inches, which was incorrect for the cabinets being installed. He testified that Plaintiff incurred $4,300.00 in materials and labor to correct EEWC's error. Plaintiff submitted a pencil drawing made by EEWC showing the wrong heights, and omitting the refrigerator and dishwasher that were to be part of the wine cellar. DiResta also questioned the status of the wine racks which EEWC was to have ordered from the manufacturer. DiResta then sent an email on June 18 stating that he had not heard from EEWC for over a week and, again, questioned the status of the wine racks. Four days later, DiResta sent a similar email to EEWC. On June 23, 2010, EEWC said it would be at the site that afternoon. Again, on June 29, 2010, DiResta asked for the status of the wine racks. On July 2, 2010, DiResta informed EEWC that he personally called the wine rack manufacturer only to learn that EEWC had no further contact with the manufacturer after the initial contact in December 2009. EEWC apparently visited DiResta on about July 5th, and promised to provide DiResta with confirmation that the wine rack deposit was sent to the manufacturer. But, EEWC provided no such confirmation. DiResta testified that he learned that EEWC did not want to work with the manufacturer; EEWC told DiResta that the manufacturer [*3]would not honor the price-lock. By July 23, 2010, the wine cellar was two months behind schedule and EEWC had not yet sent a deposit to the manufacturer for the cabinets. EEWC replied, "when we spoke last week I told you that the wine rack mill had substantially increased their original quote, and that I was getting other quotes." EEWC never obtained the wine racks or the cabinets.

On cross-examination, DiResta acknowledged that Plaintiff had no receipts or records reflecting the $4,300.00 incurred for repairing the soffit heights.

Defendant's witness was Rudolph "Bud" Handel. He testified that EEWC completed the white oak ceiling at a cost of about $8,000.00. Handel then said additional plans were needed when the homeowner made some changes to the design. He explained that the wine-cellar was designed to include a table and chairs. However, it was then realized that the wine cellar would be at a controlled temperature of 55 degrees, so the homeowner would need a spot to store vests and a closet was added to the cellar design. Handel testified that the changes resulted in a $20,000.00 increase over the original proposal. Handel acknowledged that DiResta was involved in virtually 100% of the discussions conducted about the wine cellar. When asked about the wine rack manufacturer, Handel stated that when he contacted the manufacturer that January, he got the sense that the manufacturer was in financial trouble, so he decided not to use it. Regarding his counterclaim, Handel stated that he invested "hours and hours" in the project, and spent "about $30,000.00 on work already done."

When asked on cross-examination about the receipts and invoices for the materials EEWC used, Handel responded they were "in the office." He answered likewise when asked about the employee records and time cards evidencing the hours invested in the job by EEWC.

Both sides rested, and the Court reserved decision.

ANALYSIS

In a matter such as this, it is the province and indeed the obligation of the trial court to assess and determine matters of credibility. Morgan v McCaffrey, 14 AD3d 670, 789 N.Y.S.2d 274 (2d Dep't 2005); Matter of Liccione v John H.., 65 NY2d 826, 493 N.Y.S.2d 121 (1985). Here, the burden is upon the Plaintiff to plead and prove its direct case by a fair preponderance of the credible, relevant and material evidence with the same burden imposed upon the Defendant respecting his claim against the Plaintiff. Prince-Richardson on Evidence, §3-210; Torem v 564 Central Avenue Rest., 133 AD2d 25, 518 N.Y.S.2d 620 (1st Dep't 1987). Based upon the Court's observations of Anthony DiResta, his demeanor, as well as the manner and substantiated nature of his testimony, it finds him to be credible.

Rudolph Handel is not entitled to the same finding. Falsus in uno, falsus in omnibus; if the Defendant intentionally misrepresented a material fact, then the Court can conclude that the Defendant misrepresented everything. Courten & Villar PLLC v. Alcosser, 38 Misc 3d 1206(A), [*4]966 N.Y.S.2d 345 (Table) (N.Y.Co.Ct.,2013), see also, Plycon Transp. Group, LLC v. Kirschenbaum, 36 Misc 3d 1232(A), 959 N.Y.S.2d 91 (Table) (N.Y.Co.Ct.,2012), see also, DiPalma v. State, 90 AD3d 1659, 936 N.Y.S.2d 464 (N.Y.A.D. 4 Dept.,2011). In its Verified Answer, Handel denied the allegation that: "Defendant invoiced Plaintiff on December 30, 2009 for $15,000 as a deposit for the construction of wine racks and cabinetry. On February 4, 2010 Defendant invoiced Plaintiff the sum of $4,623.50 for the construction of cabinetry. On February 4, 2010 Defendant invoiced Plaintiff the sum of $8,412.50 as progress payment for the construction of the wine racks."

However, admitted into evidence on consent was each of the above invoices. Handel also denied the allegation that: "Plaintiff paid all three invoices totaling $28,036."

Here too, on consent, a copy of each of the checks which were deposited into Defendant's account was admitted into evidence. A further detriment to Handel's credibility was his assertion at trial that he did not use the wine rack manufacturer because he had a sense it was in financial trouble, which is in sharp contrast to his July 23, 2010, email which stated, "I told you that the wine rak [sic] mill had substantially increased their original quote, and that I was getting other quotes."

Although the Court is not required to invoke the falsus in uno doctrine, the Court finds that Rudolph Handel wilfully testified falsely about material facts and considers his testimony as totally unbelievable. See, NY Pattern Jury Instruction §1:22.

Plaintiff's claim:

The elements of a cause of action for breach of contract are: (1) formation of a contract between the parties: (2) performance by plaintiff; (3) defendant's failure to perform; and (4) resulting damage. Furia v. Furia, 116 AD2d 694, 498 N.Y.S.2d 12 (2d Dept 1986). The central issues regarding whether the parties had entered into a binding contract are: (1) meeting of the minds (mutual assent to the terms of the agreement by the parties); (2) definiteness (does the agreement establish the intention of the parties with sufficiently certainty as to be enforceable by a court); and (3) consideration (was there a bargained for exchange of something of value between the parties). 28 New York Practice Series, Contract Law § 2:1. See also, T.H. Cheshire & Sons, Inc. v. Berry, 37 Misc 3d 1220(A), Slip Copy, 2012 WL 5512544 (Table), (N.Y.Co.Ct.,2012).

It was undisputed that EEWC submitted a proposal accepted by Plaintiff to construct the wine cellar. A contract was therefore formed. It was undisputed that the $28,036.00 was paid to EEWC as deposits for the wine racks and the cabinetry. Thus, there was performance by Plaintiff. It was also undisputed that the wine racks and cabinetry were never provided by EEWC. Hence, the Defendant failed to perform. Accordingly, the Plaintiff was damaged and the Complaint is granted.

[*5]Defendant's counterclaim:

Under [our] system of adversary litigation, the task of furnishing evidence rests solely upon the parties, neither the judge nor the jury having any obligation or duty in this regard. As a general rule, the party who has the burden of pleading a fact also has the burden of producing evidence and of persuading the trier of fact. [...] Fisch on New York Evidence, Second Edition, §1087, Lond Publications 1977/2008. The burden of proving compliance with the contract terms and conditions is upon the party suing for damages for its breach, and if he relies on the theory of substantial performance he has the burden of showing the nature of his defects and omissions, their unsubstantiality and the expense of making them good. Fisch on New York Evidence, Second Edition, §1098, Lond Publications 1977/2008.

Defendant failed to provide the Court with any evidence upon which the Court can determine Defendant's damages. There were no invoices or receipts for materials used for any part of what may have been constructed by Defendant. There were no time records to determine the hours purportedly invested on this project, nor wage records to calculate costs of labor. Defendant failed to even testify about linear or square-feet of materials used, and prices per unit, upon which the Court could calculate an award. Even the initial proposal was not itemized thereby depriving the Court of the opportunity to determine the values of various components of the project. The Court was provided with nothing from Defendant. It is not for the Court to consider or speculate on matters not in evidence. Accordingly, Defendant's counterclaim is dismissed.

Defendant's affirmative defenses similarly fail. Defendant provided no evidence to substantiate the affirmative defenses and, frankly, based upon the facts and circumstances described in the testimony, the Court finds no merit in the claims.

The Court notes that Plaintiff admitted into evidence EEWC's invoice for a deposit of $12,900.00 for soffit and base framing, assembly of racks, shipping and labor. The Court also notes that Plaintiff did not demand return of this payment from EEWC. This appears to be consistent with the Plaintiff's testimony that EEWC did complete certain aspects of the project regarding the soffits, framing, and other work.

This constitutes the decision and order of the Court.

Submit judgment. [*6]

ENTER

_____________________________________

Judge