Aryeh v Bistritsky

[*1] Aryeh v Bistritsky 2014 NY Slip Op 51913(U) Decided on December 12, 2014 Civil Court Of The City Of New York, Kings County Levine, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 12, 2014
Civil Court of the City of New York, Kings County

Rebekkah Aryeh aka Rebekah Schwartz aka Rebekah Schwartz Signature Design aka Rebekah Interior Design, Plaintiff,

against

Morty Bistritsky, 3512 QUENTIN LLC, Defendant.



020698/12



A P P E A R A N C E S :

PLAINTIFF PRO-SE:

Rebekah Aryeh

1375 Coney Island Avenue

Brooklyn, N.Y. 11230

ATTORNEY FOR DEFENDANT:

Izidor Mikhli, Esq.

1729 East 12th Street, 5th floor

Brooklyn, N.y. 11229
Katherine A. Levine, J.

Upon the foregoing cited papers, the Decision/Order on this trialMotion is as follows:

Plaintiff Rebekah Aryeh aka Rebekah Schwartz ("plaintiff," "designer" or "Aryeh") brings this action against defendant Morty Bistritsky, 3512 Quentin LLC ("defendant," "client" or "Bistritsky"), for failure to pay for services rendered in the amount of $25,000. It is undisputed that the parties entered into a written contract whereby plaintiff would provide interior design services to defendant for a property located at 4612 Quentin Avenue. As per the [*2]signed contract, defendant would pay plaintiff at the rate of $200 per hour and plaintiff would receive a retainer of $2000 prior to commencing work. The contract could be terminated at any time. At issue is what specific services were encompassed in the contract.

The contract provided that plaintiff would inspect and review the property, consult with the client, select materials and labor, visit "sources of supply as the Designer deems necessary to achieve the desired results," and place orders for merchandise, materials and labor (Defendant's Exhibit C"). The agreed upon hourly rate also covered telephone conferences between plaintiff and defendant and/ or any vendors working on the project. The hourly rate did not cover costs of travel, professional renderings, shipping or actual costs for samples," or other costs associated with the provision of design services." The designer had to submit invoices and receipts for expenses prior to being reimbursed by the client. The client was to be responsible for all payments and or services rendered by the independent vendors/contractors employed to complete the project.

It is clear that between October 26, 2011 and March 16, 2012, plaintiff surveyed the property; prepared and presented the projected and samples of fabric, tiles, paint and furniture to defendant; met and negotiated with vendors and contractors re the project; purchased supplies and the rubber runner for the lobby stairs; and supervised the installation of the rubber runner, the painting, and the tile installation in the lobby. It is also clear that although plaintiff kept a detailed log of her work hours, she failed to send timely bills, much less any bills to the client for five months due to the stress of moving and taking care of three children by herself. In response to the query as to why she kept on working if defendant failed to pay, Aryeh stated that she had a contract with him and "figured he would make good" since her relationship with him was based upon her friendship with his sister, and because he constantly reassured her about her work.

Aryeh sent the first bill to Bistritsky on March 2, 2012, in the amount of $12,807 (amount of work above and beyond the $2,000 retainer) for the period covering October through January 26, 2012. Defendant made a partial payment to plaintiff in the amount of $2,000 in mid March. Immediately after the partial payment, plaintiff presented her second bill to defendant for $12,620 (amount owed after deducting $2,000 retainer and $2,000 partial payment). The parties met on March 16, 2012, wherein defendant notified plaintiff that he would only pay an additional $2,000 (which would amount to a total of $6,000 for the entire job) because her charges were excessive, and that in case said offer was unacceptable, plaintiff was free to take legal action.

Bistritsky testified that he was "outraged" at such a large bill and that he would not continue retaining plaintiff's services, which were overwhelmingly more expensive than the designers he had previously retained for similar jobs. He testified that Aryeh failed to present him with any type of bill, much less a bill with specifics. He questioned why she had no time to write up bills if she had the time to sit and supervise the contractors all day, and noted that he often saw her lingering around the building either reading or doing nothing. Finally, he disputed the need to supervise the contractors since the company that Aryeh hired to do the work was of high repute and did not need her to constantly surveil them.

Aryeh testified that she specifically asked Bistritsky whether she should stay and supervise the contractors and that he answered in the affirmative. She also contends that supervision is part of being a designer since the final product is reflective of her work and would cost more if there was a mistake during the installation.

The voluminous e mails between plaintiff and defendant indicate they were in constant touch about the work being done at the premises, that plaintiff informed Bistritsky of all prices and details, and that he approved the expenditure on supplies and contractors. Curiously, none of plaintiff's e mails requested any payments or summarized her bills. Although Aryeh sent a bill dated March 2, 2012, and was only paid $2000 in mid March, the e-mails do not reflect any dispute about payment until defendant's e mail dated March 28, 2012 which terminates the relationship. Bistritsky wrote that he had consulted "with an extremely high end designer" who thought that Aryeh's time billed was "outrageous." He indicated that the designer had given him a proposal for a 15,000 square foot lobby at the rate of $9,000 and that his lobby is just a few hundred feet which made her bills "an embarrassment to me." Defendant concluded by stating that he would not "give a penny more then $6,000 in total" for all of her work which meant that since he had already paid $4,000, the $2,000 balance would be paid after he received the final bill.

The real bone of contention between the parties is whether per the contract, plaintiff s duties included supervision of the independent contractors' work and installations and whether she should be reimbursed for the time she spent supervising the workers. While the contract was silent as to whether plaintiff should be reimbursed for this supervision, the provision of the contract entitled "Liability Regarding Labor, Materials and Supplies," gives some guidance on this issue. It provides that the designer disclaims and shall not be liable for "any defects of workmanship, quality, etc. in the labor, materials or supplies provided." The client must "look to the party directly providing such labor, materials or supplies in the event there is a defect or delay in the delivery of such goods or services." Furthermore, as set forth above, the hourly rate does not cover "other costs associated with providing design services for this project."

"This case serves as a reminder that in order to determine the contracting parties' intent, a court looks to the objective meaning of contractual language, not to the parties' individual subjective understanding of it." Ashwood Capital, Inc., v. OTG Mgmt, Inc., 99 AD3d 1, 6 (1st Dept. 2012). As Judge Learned Hand stated:

"A contract has, strictly speaking, nothing to do with the personal, or individual, intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent." Ashwood, supra at 6 citing to Hotchkiss v National City Bank of NY, 200 F. 287, 293 (S.D.NY 1911).

Thus, where the terms of a contract are clear and unambiguous," the intent of the parties must be found within the four corners of the document," and the court cannot rely upon recourse [*3]to parol evidence." ABS Partnership v AirTran Airways, Inc., 1 AD3d 24, 29 (1st Dept 2003) (citations omitted). See, Wilhelmina Artist Mgmt., LLC v. Knowles, 2005 NY Slip Op 51060(U), 8 Misc 3d 1012(A (Sup. Ct., NY Co. 2005). Clear language does not become ambiguous just because the parties argue differing interpretations. See Bethlehem Steel Co. v Turner Const. Co., 2 NY2d 456, 460 (1957); Moore v Kopel, 237 AD2d 124 (1st Dept 1997). Courts cannot my construction add or excise terms. Ashwood, supra, 99 AD2d at 7.

A plain reading of the contract belies plaintiff's claim that she was responsible for the contractors' work, which necessitated that she supervise them. Since the designer disclaimed any responsibility for the quality or workmanship of the contractors, it would make no sense for Aryeh to supervise them for the entire time they were on the job. Furthermore, the contract excludes payment of the hourly rate for other costs (not mentioned) associated with providing design services.

At the outset, plaintiff's claim for a total of $27,840 must be reduced by the $4,000 that defendant already paid plaintiff, bringing the total amount claimed to $23,840. Plaintiff billed defendant for a total of 45.3 hours of supervision over a span of nine different days. The court finds that plaintiff is only entitled to bill for an hour and a half of supervision per day — 45 minutes at the beginning of the day to ensure that the workmen arrived at the site and commenced their work — and 45 minutes at the end of the day to ensure that the work was progressing and that there were no mishaps. The Court will therefore allow a total of 13.5 hours billed at $200 an hour for supervision or a total of $2700. Reducing the 45.3 hours billed for supervision to 13.5 hours leads to the disallowance of 31.8 billable hours or $6360. Subtracting $6,360 from $23,840 leads to a total of $17, 480 that is due and owing plaintiff. The Court therefore directs defendant to pay plaintiff the amount of $17,480 plus statutory interest.

This constitutes the decision and order of the Court.

Dated: December 12, 2014___________________________

Katherine A. LevineActing Justice

of the Supreme Court