Len v Home Depot

[*1] Len v Home Depot 2018 NY Slip Op 28297 Decided on September 26, 2018 City Court Of Cohoes Marcelle, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on September 26, 2018
City Court of Cohoes

John J. Len, Plaintiff,

against

Home Depot, Defendant.



SC-341-18/CO



John J. Len, pro se, for Plaintiff

O'Connor, O'Connor. Bresee & First (Kathryn Conklin Mabey, Esq. of Counsel), Albany, New York, for Defendant
Thomas Marcelle, J.

Plaintiff John Len ("Len") bought a washer-dryer from Defendant Home Depot. In addition, he paid $119 to have the new appliances delivered and installed on the second floor of his building. The delivery was flawlessly executed; the installation, however, did not go so well. An initial attempt at installation was aborted because of an interfering plastic pipe. Len cut the pipe which prompted a second attempted installation.

This attempt also proved futile. The machine's vent pipe could not be mounted consistent with applicable building codes. Upon leaving, the installers informed Len that they "were unable to hook up the vent pipe." Len turned the water back on so that he could conduct his business and that his tenant would have water. But there was a problem — the water pipe had not been re-coupled to the washer. Consequently, the water spilled from the pipe onto the floor and seeped into the drop ceiling below. Ultimately, the problem was detected when Len's first floor office was flooded. The ceiling, the lights and the carpets sustained water damage. Len sued Home Depot for a defective installation of the washing machine.

Len's case, at least with respect to the flooding, amounts to a negligence claim. To prevail, Len must prove that Home Depot breached its duty of care to him and that the breach caused damages. Starting with the duty, Home Depot had the responsibility to install the washer in a workmanlike manner. "[T]o perform in a workmanlike manner imposes on the performer the degree of care or skill that a reasonably prudent, skilled worker would have exercised under the circumstances" (Lunn v. Silfies, 106 Misc 2d 41, 44 [Sup Ct, Allegany County, 1980]).

The washing machine was left unconnected to the water pipe — the flood proves that much. Two possible causations for the flood exist. First, Len turned on the water knowing that the washer was not hooked-up and he intentionally flooded his property — an unlikely hypothesis and one which the court rejects. Alternatively, and the more plausible scenario is [*2]that, either the installers forgot to connect the washer to the water pipe or the installers failed to inform Len that the washer was not connected. Thus, in either case, Home Depot breached its duty to install the washing machine in a workmanlike manner (see Sig Buchmayr NY, Inc. v. E. A.C. Corp., 20 AD2d 765 [1st Dept 1964] [holding that flooding caused by defective installation of air conditioning unit constituted negligence]).

Home Depot suggested that the installers' statement to Len absolves it of liability. The installers' statement to Len that they "were unable to hook up the vent pipe," while true enough, was not complete enough to release Home Depot from liability. The installers never mentioned that washer was not linked to the water pipe and left Len unaware of the looming calamity. Such an omission renders the installers' statement useless as a warning against turning on the water (see Schumacher v. Richards Shear Co. Inc., 59 NY2d 239, 246-47 [1983] [discussing the sufficiency and duty to warn]).

That brings the case to the more interesting and difficult question — damages. Len testified that two cartons of ceiling tiles were needed to replace the damaged ones. He checked the price on Home Depot's website and testified that Home Depot charges $120 for two cartons of ceiling tiles. With respect to the carpet damage, Len testified that the replacement carpet cost, again according to Home Depot's website, was $100. With respect to the installation of the ceiling and carpet, Len offered a single estimate of $200. Len also offered a $350 estimate for an electrician to remedy the electrical damage caused by the flooding. At the completion of this testimony, Home Depot moved to dismiss the case because Len had failed to prove damages.

One question that a city court must eternally confront is the quantum of proof that a small claims plaintiff needs to demonstrate damages in services and repairs cases. Len offered but a single estimate for the three areas of repairs needed to his office — albeit credible ones in light of the totality of the evidence that he presented. Nevertheless, despite the credibility of the evidence, a problem exists as to its quantity. The Uniform City Court Act §1804 explains to litigants that "two itemized estimates for services or repairs are admissible in evidence and are prima facie evidence of the reasonable value and necessity of such services and repairs."

Although the rule seems clear on its face, some courts have held that one estimate is sufficient to prove damages provided that the estimate is supported by other credible evidence (see Clark v. Brownell, 60 Misc 3d 1227[A] at *6 [Glens Falls City Ct 2018] [collecting cases adopting this principle]). This theory posits that while proof of two estimates is a safe harbor, it is not an exclusive one. That is, although two estimates assure sufficient proof of damages, it does not mean "that one estimate is ipso facto insufficient" (DerOhannesian v. Bergman, 134 Misc 2d, 540, 541 [Albany City Ct 1987]). This conclusion is premised upon §1804's overarching mandate that the rules of procedure or evidence are not binding in a small claims case, so a court can achieve "substantial justice between the parties according to the rules of substantive law" (Uniform City Court Act §1804; see e.g. Murphy v. Lichtenberg-Robbins Buick, 102 Misc 2d 358, 359 [App Term, 2d Dept 1978] [holding that "the small claims part is given wide latitude and discretion in the conduct of proceedings and should require such quantum of proof consistent with its statutory purposes" to achieve substantial justice]).

Thus, according to the one estimate plus principle, a judge should examine the one estimate together with the totality of the evidence to determine if damages have been sufficiently proven. If this is a correct statement of the law, Len would be entitled to an award of damages.

However, the court cannot quite endorse the proposition that a plaintiff may prove damages by one estimate plus other credible proof. There are two reasons. First, while the [*3]Third Department has never dealt with the precise question of whether damages can be awarded based on one estimate plus other credible evidence, the Appellate Division's pronouncements on the subject seem close to definitive: "[W]here, the record reflects that plaintiffs only submitted one estimate in support of their claim, and they therefore submitted insufficient evidence, as a matter of law, to establish damages" (Yanni v. Beck, 138 AD3d 1365, 1366 [3d Dept. 2016]).

Second, even in the absence of explicit instruction from the Appellate Division, the one estimate plus rule fails to honor the traditional canons of statutory construction. Statutory interpretation begins with the statute's language (Yatauro v. Mangano, 17 NY3d 420, 426 [2011]). Here, the estimate provision of §1804 has two parts, an admissibility of evidence part (i.e., estimates are admissible) and a sufficiency of evidence part (i.e., a plaintiff must produce two estimates to make a prima facie case).

The first part, the part that governs the admissibility of estimates, seems oddly out of place because §1804's preceding sentence instructs judges that the rules of evidence are inapplicable. History has the answer for this incongruity. Prior to the admissibility of evidence provision now contained in §1804, courts were split as to whether a small claims plaintiff who presented an estimate had to resort to the tedium of statutory requirements contained in CPLR 4533—a, which governs the admissibility of estimates under $2,000 (DerOhannesian, 134 Misc 2d at 541). Thus, §1804 was amended to make estimates admissible without the necessity of the CPLR 4533-a certification process.

The second part of §1804 transitions from the admissibility of evidence to its sufficiency — that is, two estimates are required to make a prima facie case for damages. This requirement imposes a burden of production upon the plaintiff and stems from the reality that an estimate, by its very nature, involves guess work and thus is not the most reliable evidence (Murphy, 102 Misc 2d at 359).[FN1] One way to ensure the accuracy of the estimate is by a second opinion — the replication and duplication of an estimate tends to authenticate its accuracy. Moreover, this added measure of reliability assuages concerns for small claims defendants who otherwise would lack the ability to properly test a single paper estimate for bias, inaccuracies or incompetency (cf. Perkins v. State, 113 NY 660 [1889]). Thus, §1804 creates a nice compromise between the simplicity to admit estimates and the assurance that the estimates are sufficiently reliable for a court to award damages.

Given the two-part textual structure of §1804, the negative-implication canon of statutory construction determines if the two-estimate provision is a safe harbor or whether it is the sole method to prove damages by relying on estimates (see generally, Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts §10 [1st ed. 2012]). The canon admonishes "where a statute describes the particular situations in which it is to apply , an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded" (Matter of Jose R., 83 NY2d 388, 394 [1994] [internal citations and quotations omitted]). The canon is more forceful where, as here, the statute is "the product of a [*4]painstaking balance of interests" (Morales v. Cty. of Nassau, 94 NY2d 218, 224 [1999]).

The legislature has chosen a singular situation where it requires a more demanding standard of proof from a small claims plaintiff. The legislature's enumeration of the two-estimate rule to make a prima facie case for damages implies the exclusions of other methods to establish damages by the use of estimates. Therefore, constrained by the negative-implication canon, the court holds that two estimates are required to prove repair damages and rejects that one estimate, even coupled with other credible evidence, can suffice. Thus, Len, by offering a single estimate for repairs, has failed to make his case.

This does not end the analysis; Len had a different kind of proof with respect to the cost of the ceiling tiles and carpet. Len obtained prices to replace these damaged items from the defendant Home Depot's website. Home Depot did not object to this evidence, nor did it argue that its prices for ceiling tiles and carpet were unreasonable or above market value. Home Depot's own prices for the tile and the carpet, therefore, constituted an admission. An admission by a party-opponent is binding and conclusive where, as here, the admitting party fails to contradict or undermine the accuracy of the admission (Arena v. Home Indem. Co., 33 AD2d 694, 695 [2d Dept 1969]).

The question becomes whether a binding admission trumps the two-estimate rule; the court holds that it does. This holding begins with the recognition that the reach of the negative-implication canon has limits because the canon "depends so much on context" (Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts §10, p. 107 [1st ed. 2012]). Section 1804's context suggests that the two-estimate rule should be limited to situations where a plaintiff resorts to proof by estimate. Thus, while §1804's two-estimate rule is the exclusive method to prove damages via estimates, it does not exclude other methods of proving damages. In other words, a plaintiff may prove damages by means other than estimates (see Goldstein v. K & K Marble Importers, Inc., 2003 NY Slip Op 50762[U] [App Term, 2d Dept, 9th and 10th Jud Dists 2003] [holding that repair damages may be established in small claims action through expert testimony]). Therefore, the court finds that Len offered sufficient proof that the damage to his ceiling tiles was $120 and the damage to his carpet was $100, and awards these damages to him.

Finally, there is the matter of the $119 that Len paid Home Depot to install the washer-dryer. This claim alleges a breach of contract. The essential elements "to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, [and] the defendant's breach of [its] contractual obligations" (Dee v. Rakower, 112 AD3d 204, 208-09 [2d Dept 2013]). With respect to Len's contract claim, the evidence presented at trial fully supports it: Len contracted with Home Depot to install the washer-dryer; he performed his part of the contract by paying Home Depot $119; and Home Depot did not perform because it never actually installed the washer-dryer so that it could function.

That leaves the question of damages. Generally speaking, there are three types of damages a party may be awarded for a breach of contract: (1) expectancy damages which are intended to place the aggrieved party in as good a position as if the contract had been performed; (2) restitution damages, which are intended to place the aggrieved party in as good a position as if the parties had never entered into the contract; and (3) reliance damages, which are intended to allow recovery of the expenditures made in preparation for performance or in performance of the contract by the aggrieved party (see Bausch & Lomb Inc. v. Bressler, 977 F.2d 720, 729-30 [2d Cir 1992] [discussing types of contract damages]). Restitution damages are appropriate here. [*5]Home Depot must remit the $119 that Len paid them.

In sum, the court finds that Len proved that Home Depot negligently installed the washer-dryer and that Hone Depot's negligence caused Len to suffer damages in the amount of $220. Further, Home Depot breached its contract with Len to install the appliance that he had purchased and thus, Home Depot must refund to Len the $119 that he had paid for installation.

Therefore, it is ORDERED that Defendant Home Depot pay Plaintiff John J. Len the sum of $339 plus the filing fee of $20.

The foregoing constitutes the Decision and Order of the Court.

Dated: September 26, 2018

Cohoes, New York

_________________

Thomas Marcelle

City Court Judge Footnotes

Footnote 1:Burden of production is defined as "a party's duty to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against the party in a peremptory ruling" (Black's Law Dictionary [10th ed 2014]). Thus, without the production of the two estimates by a plaintiff, his case must be dismissed, which is exactly what Home Depot has asked for here.