Walter Boss, Inc. v Cleary

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Walter Boss, Inc. v Cleary 2018 NY Slip Op 33194(U) November 1, 2018 Supreme Court, Suffolk County Docket Number: 013643/2008 Judge: James Hudson Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] $UJlreme C!ourt oftfte C!ounty of$ujJOffi $tate ofNew 'y-orlt - Fart XLVI .ffiemoran6um .IDeci$ion After 'trial PRESENT: HON. JAMES HUDSON Acting Justice of the Supreme Court x-------------------------------------------------------x INDEX NO.: 013643/2008 WALTER BOSS, INC. SHLIMBAUM & SHLIMBAUM, ESQS. Attorney fo r Defendant Jay Cleary 320 Carleton Avenue, Suite 2500 Cen tral Isli p, NY 11722 v JAY CLEARY, WALTER KOHLER and EDWARD JONES x-------------------------------------------------------x J. LEE SNEAD, ESQ. Attorney for Plaintiff 144 So. Country Road, PO Box 489 Bellport, NYI 1713 PATRICIA BYRNE BLAIR, ESQ. For Defendant Edward Jones and Walter Kohler 9B Montauk Highway Blue Point, NY 11715 In the World o f Commerce, Contract is an engine mighti er than any machine. It all ows combinations of capital, labor, chattels and rea lty to ensure the profit ofindividual and col lecLive interest. When properly applied, the Common Law of Contracts regulates business relationships with the consistency of a metronome. All directed, ideally, for the betterment of human ity. The matter at hand arises from the construction of a house. Sounding in law and equity, the Plaintiff Corporation has filed a complaint asserting five causes of action against the Defendants: (1) foreclosure of a mechanics lien; (2) breach of contract; (3) unjust enrichment (4) quantum meruit; and (5) an account stated. The differing avennents of the parties mandated a trial to resolve the issues of fact Prior to the Court's discussion of the facts and law, we wou ld be remiss if the Counsel who appeared herein, Ms. Schlimbaum, Ms. Blair and Mr. Snead were not thanked for their efforts. In preparation they were thorough and exact. At tria l, the thoughtful insight of their Pagel of 39 [* 2] Walter Boss, Inc. v Jay Clec11y, et al. Index No.:0136./3/2008 questioning was all ied to mutual courtesy. Finally, their Post Tria l Briefs are notable for their sagacity. Such advocates honor their clients, this Court and thus the law itself. Plaintiff called the following witnesses during the course of its direct case: Walter Boss, Walter Kohler, Jay Cleary, and Edward Jones. The Defendants called Edward Jones, Michele Quatrale and Arthur Nelsen. Additionally, Walter Kohler was recalled to the stand. Initially, the Court will recount the testimony. The Plaintiff first called Mr. Walter Boss, the principal of the Plaintiff Corporation, a construction company. Mr. Walter Boss stated that he was con tacted by the Defendant Mr. Walter Kohler in September of2006. The purpose of their discussion was Mr. Kohler's request to retain Boss Inc. to replace the pilings of the foun dation for a house at E leven Ocean Walk, Fire Island Pines, Suffolk County, New York. Mr. Boss in formed Mr. Kohler that approximately ten pilings needed to be replaced for a total cost of$7200.00. Mr. Kohler agreed to this proposal and gave Plaintiff a deposit of $6,000.00. The work commenced but difficulties soon arose. Mr. Boss discovered that other parts of the house had deteriorated and that a prior modification of the structure had occurred w ithout the obtaining of a building permit. A certificate of occupancy for the altered building was also lacking. Mr. Boss met again with Mr. Kohler and negotiated to extensively rebuild Eleven Ocean Wall<. Mr. Boss' testimony indicates that Mr. Kohler claimed to have authority from his partners Jay Cleary, Edward Jones and John O ' Connor for the additional work. (Trial Transcript 12/5/2016, pp.18-21, 23, 59). Mr. Boss, however, admitted that there is no signed written contract. Mr. Kohler asked Mr. Boss to design and rebuild the home sc:> that it would be ready for a summer rental. This required a completion date of May 2007. Mr. Boss agreed to this. (Trial Transcript 12/5/20 16, pp.24-25). Page 2 of 39 [* 3] Tndex No.:01364312008 Walter Boss, Inc. v Jay C/eaJJ', et al. Mr. Boss indicated that he met very frequently with Mr. Kohler. This interaction is manifested in a draw ing Mr. Kohler gave Mr. Boss to graph ically express his wishes for the property (Plaintiffs Exh ibit 4) as well as notes for the project (Plaintiffs Exhibit 2). Construction plans prepared by the "Down to the Last Detail" design company were drawn up. An initial plan was prepared on 01127/ 2007 (Plaintiffs Exh ibit 54) and the final plan was in M r. Boss' hands on 03/21 /2007 (Plaintiffs Exhibit 55). Mr. Kohler worked with him in specifying changes to the property during this time period. After receiving the "go ahead" from Mr. Kohler, Mr. Boss began the reconstruction in earnest. On 02116, 2007 Mr. Boss handed Mr. Kohler a building estimate of $225.00 per sq. ft. for the 1st floor, $200.00 per sq. ft. for the 211d floor and $25.00 per sq. ft. for the roof deck. A total estimated cost of $498,680.00. was projected. (Trial Transcript 12/05/20 16, pp.70-79, Plaintiffs Exhibit 7). The work proceeded on the house w ith Mr. Boss and Mr. Kohler meeting on a regular basis. A 03/26/ 2007 memorial (referred to by the witness as a "Punch List") for work was prepared and delivered to Mr. Kohler (Plaintiffs Exhibit 8). Items were removed from the Contract with an adjustment for price (Plaintiffs Exhibit 9). On 04/07/2007 another invoice was prepared and given to Mr. Kohler. It reflected an agreed upon price of $50J,180.00 for work and materials. (Plaintiffs Exh ibit I 0). Items one through six on Exh ibit l 0 had been completed which represented $ 197, l 00.00 in services accomplished as of that date. (Trial Transcript 12/05/20 16, p.102). Discussions between Mr. Boss and Mr. Kohler resulted in further work changes. There was an increase in price for the roof deck and rails, wood floors, temporary interior stairs and excavation. There was a decrease reflected for the bathroom. This was memorialized in an estimate (Plaintiffs Exhibit 11). Further discussions ensued concerning a silestone countertop. A Contract was prepared by Mr. Boss on or about 04/29/2007 (Exhibit 12) and sent to Mr. Kohler. The total price for the work and materials was to be $507,995.00. Page 3 of 39 [* 4] Index No.: 013 6./ 312008 Walter Boss, Inc. v Jay C/e(IJy, et al. Mr. Boss stated that the final invoice for the work were prepared and/or dated 08/02/2007. (Plaintiffs Exhibits 17, 18 and 19). Plaintiff's Exhibit 19 notes that it was a final invoice and was for work at Eleven Ocean Walle Mr. Boss prepared a record of payments made on account (Plaintiffs' Exhibit 23) which totaled $185,000.00. This left an unpaid balance of$323,095.00. After giving a copyto Mr. Kohler by hand, Mr. Boss stated he handed an updated copy of the 08/02/2007 invoice to Mr. Cleary on the Fire Island Pines ferry dock on 08/09/2007. Exhibit 19 stated a total price $508,095.00 which did not reflect earlier payments to Mr. Boss (Trial Transcript 12/5/2016, pp.1 50-157). After the invoice (Exhibit 19) was delivered on August 9111 , 2007, a door ordered for Eleven Ocean Walk arrived. Mr. Boss indicated that he advanced the sum of $2,060.57 for it. Mr. Kohler directed that it be delivered it to the Shell Walk property jointly owned by Mr. Kohler and Mr. Jones. Mr. Boss then added the door's cost to the Invoice (Exhibit 21 ). It brought the total to $510, 155.57. (Trial Transcript 12/6/2016, pp.162-163; Trial Transcript 3/29/2017' p.78). When payment was not forthcoming, Mr. Boss sent demand for same by certified mail (Plaintiffs Exhibit 22). This stated a total project cost of$5 l 7,355.57 less payments made of$191 ,000.00. The grand total due was now $326,355.57. (Trial Transcript 12/6/20 16, pp.164-168). Mr. Boss said that he had numerous phone calls with Mr. Cleary during August and September 2007. During those conversations, Mr. Cleary acknowledged transferring money into a joint bank account in order to make a partial payment of $150,000.00. Most specifically, Mr. Cleary said he had transferred money to Mr. Kohler and was surprised Plaintiff hadn't been paid in full (Trial Transcript 3/29/17 pp.122-124 ). Mr. Boss also had emai l communications with the Defendants regarding when he wou ld receive the $150,000.00 payment (Plaintiff's Exhibit 29). (Trial Transcript 4/26/2017, pp.253-258). Page 4 of 39 [* 5] ' Index No.:01364312008 Walter Boss, Inc. v Jay Cleary, et al. During Mr. Boss' testimony, the Plaintiff submitted invoices for materials, supp lies, and equipment which Mr. Boss claims was used for installation at E leven Ocean Walk (Plaintiffs Exhibits 34 through 52). Mr. Boss testified as to the authenticity of each invoice and that he had paid for them. They had been used by him to determine cost estimates for the project (Trial Transcript 2/23/17, pp.5-95, and pp.122-146; 3/29117, pp.1-80). Copies of checks indicating payment were introduced (Exhibit 53). (Trial Transcript 3/29/17, pp.8095). Mr. Boss also proffered a DVD (P laintiffs Exhibit 57), (filmed July 3 I51 2014) of Eleven Ocean Walk. Mr. Boss narrated what work he performed during the playing of same (Trial Transcript 2/23/ 17, pp.96-1 14). The Defendants point out certain portions of Mr. Boss' testimony. A subcontractor, Arthur Nelsen Electricians Inc., had performed work at the locus in quo. Mr. Boss stated that he had paid its bill. ''Q. Mr. Boss, did you pay the Arthur Nelson (sic) bill, the balance of it? · A. Yes. Q. Was that in one check or more than one check? A. Multiple checks. Q. And do you have cop ies of those checks? A. I don 't know. Q. And I'm going to direct your attention back to that last page of Plaintiff s Exh ibit 34. What was the total amount that you paid Arthur Nelsen, licensed electrician? A. I' d have to refer to something that did his billing. I have no idea. Q. But you ' re sure you paid it in full? A. Yes. (Trial Testimony, March 30, 20 17 at page 41, line 23 to page 42, line 11). Later in his testimony, Mr. Boss reiterated this posi tion. "Q. Mr. Boss, it's your testimony that you pa id the electrician in fu ll, is that correct? A. Yes. Page S of 39 [* 6] Walter Boss, Inc. v Jay Cleary, et al. Index No. :01364312008 Q. D o you have any proof of paying the electrician in full? A. There was no lien on the property. That's my best way to respond to you. Q. Mr. Boss, do you have any checks to the electrician renecting payment for work the electrician Arthur Nelsen did at E leven Ocean Walk? A. There are some checks that show some payment. Q. Where are those checks, Mr. Boss? A. T hey ' re probably not in the .. .I don't know where they are because I don't know. Q. Do you have a receipt from Mr. Nelsen or Arthur Nelsen E lectric that says that the Invoice is paid in full? A. I believe Mr. Snead provided you documents that showed everything paid in full from the individual Invoices for the individual subcontractors. That's the only thing I have." (Trial Transcript March 30t\ 2017 page 82, line 24 to page 83, line 25). Mr. Boss also testified concerning a spiral staircase ordered for Eleven Ocean Walk. "Q. So Mr. Boss, you included in your February l 6t11 , 2007 estimate an estimate for a spiral staircase when the quote date you got for the staircase was almost a month later? A. Yeah. So?" (Trial Testimony, March 30t", 2017 at p.44, lines 20-23). Mr. Boss testified with respect to missing Invoices from other vendors that he added to the estimate for the Defendants. Included in those missing Invoices was a bill from Jimmy 's Hardwood Floors (Trial Testimony, March 30t11 , 2007, p.45, line 15 to p.46, li ne 19); and the furnace for the house. (Trial Testimony, March 30, 2017, p.47, lines 2 to 12). Mr. Boss was questioned regarding the charge for the windows: "Q. And Mr. Boss, I'm going to direct your attention to line six of Plaintiffs Exhibit 7. A. Okay. Q. It says, windows, doors and insulation? A. Okay. Page 6 of 39 [* 7] Index No.:0136./312008 Walter Boss, Inc. v Jay C/eaJJ', et al. Q. And there's a figure there of $52,400.00? A. Yes. Q. D o you recall yesterday in your Direct Examination that you testified that you had given Mr. Kohler choices of windows to order based upon your recommendation and that he made the choices and it was only after he made the choices that you ordered the windows? A. Yes. Q. And do you also recall testifying yesterday that you created how much the total cost of the w indows would be based upon the choices that Mr. Kohler made? A . Yes. Q. And do you recall also testifying yesterday that you took that one fina l number for the windows and you made it part of your estimate? A. Yes. Q. And is that part of Plaintiffs Exhibit 7? A. Yes. Q. A nd do you recall also testifying yesterday that you d id the same th ing with the p lumbing and the electrical and everything? A. Yes. Q. Do you have any of those documents that you shared with Mr. Kohler when you explained to him what the individua l costs would be that are broken down on Plaintiffs Exhibit 7? A. I do not. Q. And did you ever have any of those documents? A. When I developed the project. Q. And what happened w ith those doc uments? A. Once we agreed to what we were using, I destroyed them. Q. A nd is that your common practice? A. Yes. Q. Did you have Mr. Kohler sign off on any of those documents? A.No. Q. Did you give Mr. Kohler a copy of any of those documents? A. T he final copies. The final. .. the plans and stuff, w hen they were all done. Q. Not the plans. I'm talking about how you deve loped the line items on Plaintiffs Exhibit 7. Did you give Mr. Kohler a copy Page 7 of 39 [* 8] Walter Boss. Inc. v Jay Clec11J'. et al. Index No.:0136../312008 of any of those documents? A. I did not. Q. Did you give M r. Jones a copy of any of those documents? A . Mr. Jones was never part of this project. It was on ly Mr. Kohler. Although he was an owner. Q. Mr. Boss, my question was: Did you give Mr. Jones any of those documents? A. No, I did not. Q. Did you give Mr. Cleary any of those documents? A. I d id not.,, (Tria l Testimony, March 30 1" , 2017, p.51, line 4 to p .53, line 10). Mr. Boss' testimony also indicated that a check he made payable to Port Lumber (P laintiff's Exhibit 53) does not relate to the bill from Port Lumber referenced in Plaintiff's Exhi bit 48. (Trial Testimony, March 30'11, 20 17, pp.56, li nes 1-1 8). Mr. Boss' testimony also indicated that checks to made payable WindowRama (Plaintiffs Exhibit 53) may be for Invoices not included in bills from that Company (Plaintiffs Exhibit 52). (Trial Testimony, March 30'1\ 2017, p.57, line 23 to p.58 line 1 and p.59, line 15 to p.60, line 13). Mr. Boss acknowledged that the Defendants asked for detailed bills from him on August 16 111, 2007 (Trial Transcript, March 30 1h, 2017 p.66, line 19 top. 69, line 9). P laintiff adm itted that the railing system Mr. Boss had installed at the property was not up to the standards of applicable building codes. (Trial Testimony March 301\ 2017 at page 7 1, line 24, to page 72, line 2 and page 72, line 3, to page 72, line 16). Mr. Boss testified that while he billed $18,000.00 for " Freight and Del iveries" he never presented any bi lls for same to the Defendants (Trial Testimony March 301'\ 20 17 p.75, line 13, to p.76, line 3). Mr. Boss fu rther testified with respect to the inconsistent amounts contained in the "Down to the Last Detail" Invoice and the correct amount of that Invoice (Trial Transcript. March 30''\ 2017 p.79, line 18, to p.81, line 2). Mr. Boss was questioned regarding the funds provided by the Defendants prior to commencing the of renovation of Eleven Ocean Wall<. Page 8 of 39 [* 9] Index No. :01364312008 Walter Boss. In c. v Jay Cleary, et al. "Q. Mr. Boss, when you were starting some of the renovation work at the house, you purchased material, isn' t that correct? A. Yes. Q. Would you be surprised if I told you that you purchased approximately $40,000.00 worth of material for this house before January 3 1, 2007? A. No, I wouldn't be surprised. Q. Would you think it was more than $40,000.00? A . I don't know. Q. Do you recall testifying before lunch that you had some of your employees working at the house and you had paid them for work that was done on the house in November an d December 2006 and Janu ary 2007? A. Yes. Q. And do you recall testifying before lunch that you received payments tota ling $26,000.00 from the Defendants prior to January 31 , 2007? A . Yes. Q. Is it your practice to layout money for customers to buy materials and/or pay your employees before they pay you? A . Under this situation yes. Q. And other than this situation, have you done it in any other situations? A. Yes. Q. And would that be on one or more than one occasion? A. I don ' tremember. " (Trial Transcript March 30t\ 20 17, pp.8287). The Defendants point out the discrepancies in Mr. Boss' testimony vis-a-vis documentary proof. Plaintiffs Invoices and estimates are for 13 different amounts: Plainti ffs Exhibit 1: November 2l5t, 2006-$7,200 .00; Plaintiff's Exhibit 7: February 16 111 , 2007-$498,680.00; Plaintiff's Exhibit 9: February 16th, 2007, revised April 7th, 2007$501 , 180.00 w ith $464,075.00 written under it; Plaintiff's Exhibit 10: February 16111 , 2007, revised March 26 111 , 2007, de livered April 7t11 , 2007-$50l , 180 .00 with $464.075.00 typed under it: Page 9 of 39 [* 10] Index No. :OJ 36-1312008 Waller Boss, Inc. v Jay Clea1y, el al. Plaintiffs Exhibit 11: February l 6111 , 2007, revision from April 7111 meeting-on page one, $50l,180.00 with $464,075 .00 typed under it and $470,830.00, $497, 195.00, $499,695.00 and $500.00, 195.00 written next to it and on page two, $7,800.00 and $500, 195.00; Plaintiff's Exhibit 12: April 29 111 , 2007-$7,800 .00; Plaintiff's Exhibit: February 16 111, 2007, revision from April T 11 meeting-has the same numbers as page one of Plaintiffs Exhibit 11; Plaintiffs Exhibit 17: August 211u, 2007-$508,095.00; Plaintiffs Exhibit 18: August 211d, 2007-$508,095.00; Plaintiffs Exhibit 19: August 211d, 2007-$508,095.00 ; then a credit fo r$ I 85,000 in Defendants' payments leaving a ba lance of $323,095.00; Plaintifrs Exhibit 20: $508,095.00; Plai ntiff's Exhibit 21: $2,060.57; and Finally, Plaintiffs Exh ibit 22 is an Invoice fo r the $5 I 7)55.57 total alleged at pages 3-4, paragraphs 12 and 14 of Plaintiffs Verified Complaint and gives credit for $ l 91,000.00 in Defendants' payments and a balance due in the same amount as sued for, $326,355.57. Mr. Wa lter Kohler was called both by the Plaintiff and the Defense. Mr. Koh ler admitted that he told Mr. Boss he was the agent for the owners of the property and was in charge of the construction project (Trial Transcript 12/8/ 16, pp.498, 502503). Although the discussion concerning the project was originally for piling work, this expanded to the hiring of Boss Inc. to repair the east side and fi rst floor of Eleven Ocean Walk (Trial Transcript 12/8/16, p.519). Page 1. 0 of 39 [* 11] Walter Boss, Inc. v Jay C!eG1y, et al. Index No.:0136./312008 In response to Mr. Snead's questioning regarding Mr. Koh ler's activities, the fo ll owing testimony was elicited: "Q .... if he told you something needed to be done, would you make a decision about whether to do it, or not? A . With the agreement of my partners. Q. [W]as it fair to say that there was a continuing dialogue between you and Mr. Boss, about what needed to be done? A. Yes. Q. And is it fair to say that there was a continuing dialogue from you to your partners, about what needed to be done? A. Yes. Q. And in regard to these dialogues, would your partners then authorize you to do the work? A. Yes." (Tria l Transcript, 12/8/ 16, at 533-534). Mr. Kohler then related how he became involved with the details of the construction: "Q. With regard to the first floor of the property that was ultimate ly built, did you authorize Mr. Boss to put in all of the work? A. Yes. To the first floor. Q. Four bedrooms? A. Fix everything on the first floor? Q. Yes? A. Yes. Q. And so, with regard to four bathrnorns [e n] suite; is th at fair to say? A. Yes. Q..... With regard to the upper floor, did you give Mr. Boss direction about how the upper floor was to be designed? A. Yes. Q. Did you approve the layout of the second floor? Where the kitchen was to go? Where the dining room was? A. Yes." (Trial Transcript 12/8/ 16, at 534-536). Page 11 of 39 [* 12] Waller Boss, Inc. v Jay Clea1J1, el al. Index No.:0136./3/2008 Mr. Kohler then told, in deta il, of his other interactions with Mr. Boss during the construction (Trial Transc ript 12/8/2016, pp.536-539). He characterized this by saying they "periodically checked on the work" (Trial Transcript 12/8116, p.540). Mr. Kohler' s testimony contained portions where it repudiated itself. He initially listed items to be performed as including '4 ••• the layout of the hallway closet...hot water heater. .. heating ... laundry area ... the direction of the stairs ... showcrs in the bathrooms" when the query was made by Mr. Snead. (Trial Transcript 12/8116, p.541 ). In response to a question by Ms. Blair, however, during later direct examination: " Was Walter Boss hired to do any other work after he replaced the pilings?" Mr. Koh ler answered: "No." (Trial Transcript 4/25/ 17, p.128). Nowhere is Mr. Kohler's recantation more evident than in the fo ll owing testimony el icited by Ms. Blair: "Q. A nd, Mr, Kohler, if you could please redirect your attention to Plaintiffs Exhib it Twenty? A. Okay. Q. Okay, and if you could look at...there's certain paragraph, or numbers on the documents; one, two, three. Do you see what I'm talking about, on the left side? A. Yes. I see numerical items. Q. So, beginning with Item Number One, demolition, can you read the amount on that Invoice for demolition? A. Fifteen thousand dollars. Q. Was there ever an agreement between you and Mr. Boss for demoli tion in the sum of fift een thousand dollars? A.No. Q. And number two, could you read that, p lease? A. Pilings and girders. Q. And wants the amount? A. Twenty nine thousand dollars. Q. Was there ever an agreement between yourself and Mr. Boss w ith respect to cost for pilings and girders? A.No. Q. Number three, please? A. Framing and sheathing. Page 12 of 39 [* 13] Index No.:01364312008 Walter Boss, Inc. v Jay C/emJ1, et al. Q. And the amount? A. Forty-five thousand dollars. Q. Was there ever an agreement between yourself and Mr. Boss with respect to the cost for framing and sheathing? A.No. Q. And number four, please? A. Siding. Q. And the amount? A. Thirty nine thousand, seven hundred dollars. Q. Was here ever an agreement between yourself and Mr. Boss with respect to the cost of the s iding? A.No. Q. And number five, please? A. Roofing. Q. And the amount? A. Eighty eight hundred dollars. Q. And was here ever an agreement between yourself and Mr. Boss with respect to the cost of the roofing? A.No. Q. And number six, please? A. Windows, doors, and insulation ... in parentheses, exterior. Q. And the amount? A. Fifty two thousand, four hundred. Q. Was here ever an agreement between yourself and Mr. Boss with respect to the cost of the windows, doors, and insulation? A.No. Q. Number seven, please? A. Plumbing and fixtures ... parentheses ... credit for plumbing fixtures, toilets , sinks, etcetera, four thousand. Add O/S shower, seven fifty. Q. And the amount, please? A. Thirty six thousand. seven hundred and fifty dollars. Q. Was here ever an agreement between yourse lf and Mr. Boss with respect to the cost of th e plumbing and fixtures? A.No. Q. And number eight, please? A. Electrical. Q. And the amount? A. It says electrical revised. And it's forty nine thousand, five Page 13 of 39 [* 14] Index No.:0136./312008 Walter Boss. Inc. v Jay ClemJi, el al. hundred seventy five dollars. Q. Was here ever an agreement between yourself and Mr. Boss with respect to the amount for electrical? A.No. Q. Number nine, please? A. First and second floor decking with rails. Q. And the amou nt? A. Nineteen thousand, two hundred dollars. Q. And was there ever an agreement between yourself and Mr. Boss w ith respect to the cost for the first and second floor decking with rai ls? A.No. Q. Number ten, please? A. Roof deck with rails, revised. Q. A nd the amount, please? A. Twelve thousand, nine hundred dollars. Q. And was there ever an agreement between yourself and Mr. Boss w ith respect to the cost of the roof deck with ra ils? A.No. Q. With respect to these items: fourteen through thirty one, did you ever have an agreement with Mr. Boss for the cost of any of these items? A.No. Q. And, Mr. Koh ler, could you please flip the ... Plaintiffs Exh ibit Twenty over? A nd there's several more item numbers on that page; is that correct? A. Yes, Ma'am. Q. And it begins at thirty two? A. Yes, Ma'am. Q. And it ends at forty three? A. Yes, Ma 'am. Q. And could you please look those over carefully, too? A. Okay. Q. Was there ever an agreement between yourself and Mr. Boss w ith respect to items numbers thirty two through forty three ... ? A.No. Q. For the cost thereof? A . No. Q. Thank you, Mr. Kohler. " (Trial Testimony April 25, 2017, pp.146-152). Page 14 of 39 [* 15] Index No. :01364312008 Walter Boss, Inc. v Jay Clec11 y, et al. Despite this emphatic denial of authorizing the project undertaken by Boss Inc., Mr. Kohler also admitted that he approved some of the items on Plaintiff's Exhibit 20 (Trial Transcript 4/25/ 17, pp.173-175). Mr. Kohler also denied receiving an estimate, invoice or account until August of2007. He also stated that he did not receive the "Phantom Door" invoice or the invoice/summary payments dated 9110/2007. (Exhibit 22) . (Trial Transcript 4/28/17, pp.137- 138). Mr. Kohler also indicated that a Apri l 6t11, 2007 payment of $50,000.00 to Mr. Boss was considered by him to be the final payment for the project. (Trial Transcript 4/25117, p.166). It must be noted that Defe nse Exhibit (R-1 ) shows a $10,000.00 payment from Defendants ' joint account on April 301\ 2007. Mr. Kohler also spoke of the poor quality of Boss Inc. ' s work product. This required numerous repairs to the: railings, spiral staircase, ceilings, sliding glass doors, stairways, insulation, interior doors and leaking windows, among other in the house. (Trial Testimony April 25 11i, 20 17, pp.158-160). The essence of Mr. Kohler' s testimony is that there was no contract between himself, the co-Defendants and Mr. Boss. (Trial Transcript, Apri l 25t11, 2017 at p. l 28, line 22 top. 129, line I ). Additionally he averred that he did not receive (or even see) Boss Inc.'s invoices. (Plaintiffs Exhibits 7, 9, 10, 11 , 12, 13, 17, 18, 19, 20, 21and22) until the instant litigation had commenced (Trial Testimony April 25°1, 2017 pp.1 29- 135, pp.1 37-138). The Court also heard the testimony of Mr. Jay Cleary. He indicated that it was his intention fo r the property to be reconstructed as a structure consisting of four bedrooms downstairs, with a kitchen, living room and dining room upstairs surmounted by a roof deck. (Trial Transcript 4/25117, pp.213-24 ). Mr. Cleary a lso stated that Mr. Kohler discussed "punch lists" with him. The goal of the partnership was to have tenants in by May. This was successful although he never discussed the project personally with Mr. Boss prior to the tenants moving in (Trial Transcript 4/25/ 17, pp.217-2 18). Page 15 of 39 [* 16] Walter Boss, Inc. v Jay Cle01y, el al. Index No.:0136./312008 During his testimony, it was pointed out that Mr. Cleary admitted in a deposition Trial Transcript that the money placed in the joint checking account was put there for payment to Boss Inc .. (Trial Transcript 8/29/2013, pp.38-39). Mr. Cleary's testimo ny was somewhat contradictory but ultimately established that the $130,000.00 deposited in the joint account after April 6111, 2007 (actually made on July 11 th, 2007) was for the purposes of paying for construction. This is substantiated by a letter from Cleary to Jones and Kohler dated May 20 111 , 2008 (Exhibit 78-A) in which he plainly states this. Defense Counsel, argues that this ev idence can be construed as setting aside this money for construction in general and not Mr. Boss, in particular. Mr. Cleary stated that he did not rece ive any estimates from Mr. Boss prior to the August 2007 meeting at the ferry dock. This is corroborated by Mr. Boss' testimony (Trial Testimony, March 30, 2017, pp.51-53, line 10). During Mr. Cleary's testimony, Plaintiff also offered as evid ence a schedule of payment (computer printout) by Mr. Cleary stating a $130,000.00 payment from a HELOC on 7/ 11 /2007 was "Payment for Wa lter Boss and Misc. Expenses." (Exhibit, 78-B). (Trial Transcript 4/27I 17, p.487). Mr. Edward Jones's testified. He acknowledged receipt of one of the invoices that was dated in August of 2007, but also said that he had not received any of the estimates or revised invoices prepared by Mr. Boss before that date. (Tria l Testimony, 4/28/ 20 17, at pp.526-542). Mr. Jones informed the Court that he was given Plaintiff s Exhibit 20 or something very similar to it on or about August 9 111 , 20 17, but he did not agree to pay the line by line amounts attributed to each item (Triai Transcript 4/28/2017, pp.542-553 ). Mr. Jones testified with respect to the poor workmanship at the property. He narrated a video of E leven Ocean Walk (which was admitted into evidence as Plaintiffs Exhibit 57 without sound) that had been taken by Plaintiffs Attorney. Mr. Jones was present at the time the video was made. Mr. Jones went through multiple issues regarding the house, including Page 16 of 39 [* 17] Walter Boss. Inc. v Jay Clemy, et al. Index No.:0136./3/2008 items that had to be repaired at the cost and expense of the Defendants, and items that had to be replaced or redone because they were not up to Town Code and a Certificate of Occupancy would not be issued (Trial Testimony 4/28/2017, pp.577-594). Mr. Jones also spoke of payments to other vendors to correct or repair work performed by the Plaintiff: "Q. Mr. Jones, do you know if you, or Mr. Kohler, or Mr. C leary had to hire an architect to draw plans for E leven Ocean? A. Yes. Q. And do you recall what architect your hired? A. Um, something about Ingenuity, or something. Q . Do you know how much you p aid Ingenuity? A. It was about forty-five hundred dollars." (Trial Testimony 4/28/2017, p.573). Mr. Jones testified that the railing installed by Mr. Boss had to be replaced because it was not installed accord ing to the Brookhaven Town Building Code (Trial Testimony 4/2 8/2017, pp.568-569). He also indicated that the Defendants paid Mr. Matt Sullivan $25,000.00 to do the sheet-rock work at Eleven Ocean Walk (Tria l Testimony p.551 , lines 12-23). Ms. Michele Quatrale also testified. She is the owner of a building permit expediting company and was retained by the Defendants to obtain a Building Permit for the proposed construction at E leven Ocean Walle She was paid the sum of $3,861.93 by the Defendants for this task (Defendants Exhibit R-2). Ms. Quatrale stated that even though she requested construction plans from Mr. Boss, he never provided her with same. These plans ru·e a necessary prerequisite for a Building Permit (Tri al Transcript, 4/27/20 17, pp.18-19, 23). The construction plans were from Mr. Jim Ingenito, the Architect retained by the Defendants Kohler and Jones. J:inally Ms. Quatrale testified that she did not get the approval for the Page 17 of 39 [* 18] Walter Boss, Inc. v Jay Clecny, et al. Index No.:01364312008 plans until December of 2007, after work had improperly commenced. (Trial Transcript 4/27/20 17 pp.20-21). Mr. Arthur Nelsen was called to the stand. He is the owner ofA rthur Nelsen Licensed Electrician, Inc .. Mr. Nelsen indicated that he is owed the sum of $6,135.00 from Walter Boss, Inc. for work done at Eleven Ocean Walle During his testimony. the Defense offered a document as evidence (Defendant's Exhibit AA). This is a printout of the amount still due Arthur Nelsen E lectrician, Inc., for the work done at the locus in quo. Mr. Nelsen testified that th is amount has never been paid and is currently outstanding (Trial Transcript 4/28/2017 p.5 I 3). In addition to the testimony, the Court received documentary exhibits from the Plaintiff and the Defendants. Plaintiff's Exhibits 25, 26, 74, 78-A and 78-B, were admitted for limited purposes. In reach ing the ultimate conclusion, the Court considered these exhibits in light of its rulings during the trial. Based on the forgoing testimony and accompanying exhibits, The Plaintiff contends that it has proven its various causes of actions. The Defendants dispute this assertion and aver that the subm itted proof sustains the counterclaim. The Court will analyze the specifics of these arguments ad seriatim. Prior to discussing the applicable law, it is incumbent on the Court to decide the questions of fact in this matter. Since the critical testimony often differed, the Court must separate the gold from the dross. "[T]he appropriate standard for evaluating (a] weight of the evidence argument is the same, regardless of whether the fact finder was a judge or jury" (People v. Rojas, 80 A.D.3d 782, 782, 915 N.Y.S.2d 602 [211d Dept 2011]. In assessing the credibili ty of the w itnesses, the Court is obliged to apply the same criteria as a lay person jury of six. This includes the physical demeanor of the witness on the stand (People v. Ya-ko Chi, 72 A.D.3d 709, 710, 898 N.Y.S.2d 619, 62 1 [2nd Dept. 2010]; citing People v. Mateo , 2 Page 18 of 39 [* 19] Index No.:01364312008 Walter Boss, Inc. v Jay C/ecny, el al. N.Y.3d 383, 410, 779 N.Y.S.2d 399, 8 11 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672]). In short, the Court applies to itse lf the criteria with which every lay jury is instructed: "The interest or lack of interest of any witness in the outcome of this case, the bias or prejudice of a w itness, if there be any, the age, the appearance, the manner in which the witness g ives testimony on the stand, the opportunity that the witness had to observe the facts about which he or she testifies, the probability or improbabili ty of the witness' testimony when considered in the light of all of the other ev idence in the case, are all items to be considered by you in deciding how much weight, if any, you will give to that witness' testimony. If it appears that there is a conflict in the evidence, you wi ll have to consider whether the apparent conflict can be reconciled by fitting the different versions together. If, however, that is not possible, you wi ll have to decided which of the conflicting versions you will accept."' (N.Y. Pattern Jury Instr.-Civil 1:8) Invoking the aforementioned Rule, this Court finds that Mr. Boss testified credibly. Ms. Quatrale and Mr. Nelsen also spoke with veracity but the ambit of their speech was limited in scope. We note that Mr. Boss' and Mr. Nelsen 's statements did not agree. In that instance, however, the Court concludes that Mr. Boss, given the passage of time and the extensive nature of the project, was honestly mistaken as to the outstanding bill. Conversely, the tescimony of Mr. Kohler, Mr. Cleary and Mr. Jones was less than persuasive. In the case of Mr. Koh ler, his testimony was marked by so many contradictions and inconsistencies that we consider hi s words to have been entirely without utility. It is in this light that the proof has been analyzed by the Court. Since the lion's share of interaction was between Mr. Kohler and Mr. Boss, the potential liab ility of Mr. Cleary and Mr. Jones must be addressed. It is uncontroverted that the three Defendants were business partners in the operation of Eleven Ocean Walk. As stated in the case of Beizer v. Bunsis, 38 A .D.3d 813, 833 N .Y.S.2d 154, (2 11d Dept. 2007) "Partnerships are governed by the laws of agency [see Partnership Law § 4 [3]). "A partner Page 19 of 39 [* 20] Index No.:0136./312008 Walter Boss, Inc. v Jay Clemy, et al. is the agent of the partnership and his acts may be adopted and enforced by the partnership as its own" (Bennett Dairy v. Putney, 46 A.D.2d 1010, 362 N.Y.S.2d 93). However, " it is only when it can be seen that a partner is, in fact, acting as an agent of his copartners, that he binds them" (Bie11e11stok v. Ammidown, 155 N.Y. 47, 58, 49 N.E. 321)." (Id. at 8 14). Even if Mr. Kohler's actions were dup licitous, his authority to bind his fe llow pa1tners is undiminished since they charged him w ith overseeing the management of the construction project. Indeed the law provides that a principal can still be obliged to answer fo r the·· ... the fraud ul ent acts of its agent if the agent is acting w ithin the scope of his actua l or apparent authority" Heine v. Colto11, Bartnick, Yamin & S lteresky, 786 F. Supp. 360, 368 (S.D.N.Y.1992), citing Herbert Constr. Co. v. Continental Ins. Co., 931 F.2d 989, 993 (2d Cir.1 99 1); Citibank, N.A. v. Nylflnd (CFS) Ltd. , 878 F.2d 620, 623-24 (2d Cir.1989]). Accordingly, any act on the part of Mr. Kohl er which this Court finds advances the claims of the Plaintiff, is attributab le to the remaining Defendants. The Court w ill first determine the claim of Breach of Contract. As discussed below, the case law used by the Court in its decision mak ing process is often qui te recent. The Law itself, however, has a venerable lineage. In his Commentaries on the Laws of England, the immortal Sir Wi lliam Blackstone observed principles wh ich guide us today: "THIS contract or agreement may be either express or implied. Express contracts are where the terms of the agreement are open ly uttered and avowed at the time of the making, as to de)iver an ox, or ten load of timber, or to pay a stated price for certain goods. Impl ied are such as reason and justice dictate, and which therefore the law perfumes that every man undertakes to perform. As, ifl emp loy a person to do any business fo r me, or perform any work; the law implies that I undertook or contracted, to pay him as much as his labor deserves. If I take up wares from a tradesman, w ithout any agreement of price, the law concludes that I contracted to pay their real value." (Blackstone Book 2 Chapter 30). Page 20 of 39 [* 21] Index No.:0136./312008 Walter Boss, Inc. v Jay Clecny. et al. The Plaintiff urges the Court to view: " ... the various estimates and Invoices submitted by Boss to Kohler and the other defendants during the construction of the (Exhibits" l ' ""7 ' ""9' "" l 0 ' ''' "11 , " Eleven Ocean Walk proiect J "12," "13," "17," "18," " 19," "20," "2 1," "22 ") ... [as] a binding written agreement belween the parties." Notwithstanding this, it is the Plaintiff's position that the lack of a writing is not fatal and cites to the following authority: Flores v. Lower E. Side Sendee Ctr., Inc. , 4 N.Y.3d 363, 369 (2005); G(ll/(lg/ter v. Long Is/(111d P/(lstic Surgical Gp. P.C. , 113 A.D.3d 652, 653 [2d Dept., 2014]; Gelw v. 55 Orchard Street, LLC, 29 A.D.3d 735, 736 [2d Dept., 2006]). The parties intent, argues Counsel, can be indicated by their conduct alone, (see, PJI Civil, Div. 4:1 , at 6; S. Kornblum Metals Co. v. /ntsel Corp., 38 N.Y.2d 376, 380 (1976]; Jltfiller v. Scltloss, 218 N.Y. 400, 407-08 [1916]). The Defendant' s collective argument is that there was no meeting of the minds and hence, no contract which could form the basis of a claim for breach. In support of this argument, Defense Counsel relies on Silber v. New York Life Ins. Co. , 92 A.D.3d 436, 938 N.Y.S.2d 46 (!51 Dept. 20 12); Paz v. Singer Co. , 151 A.D.2d 234, 235, 542 N.Y.S.2d 10 [l 989]; Matter ofExpress Indus. & Term. Com, v. New York State Dept, of Tra11sp. , 93 N.Y.2d 584, 589, 693 N.Y.S. 2d 857, 715 N.E.2d 1050 [1999]). T he various invoices presented by Mr. Boss to Mr. Kohle r are uns igned by the latter. Standing alone, if thi s matter was governed by the Statute of Frauds, an essential element would be missing, namely the signature of a party to be charged (see Am. Comm. for Weizmann Inst. ofSci. v. Du1111, I 0 N.Y.3d 82, 92, 883 N.E.2d 996, 1002 (2008]; Cmbtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 56, 110 N.E.2d 551, 554 (1953]; GOL § 5701]). The Court agrees with Plaintiff's contention that the provisions of General Business Law§ 771 requiring home improvement contracts to be in writing is inappl icable to this case. Page 2 1 of 39 [* 22] Index No. :01 36./312008 Walter Boss, Inc. v Jay Clemy, et al. The facts proven at trial demonstrate that the purpose of the construction was to create a rental property. This brings the transaction outside of the strictures found within GBL § 771 (see GBL, §§ 770 (3) (a); 770 [7]). Unless it violates the Statute of Frauds or some other statutory/regulatory requirement, an oral contract " ... is as enforceable as a written one" (Charles Hyman, /11c. v. Olsen Indus., Inc., 227 A.D.2d 270, 275, 642 N.Y.S.2d 306, 309 [1st Dept. 1996]). As opined by the Court in Saul v. Ca/um, 153 A.0.3d 94 7, 61 N.Y.S.3d 265 (2 11<1 Dept. 2017), " (A] party alleging a breach of contract must 'demonstrate the existence of a ... contract reflecting the terms and conditions of their'. .. purported agreement'" (JJ;Jmulari11 Trading Ltd. v. Wi/denstein , 16 N.Y.3d 173, 181-182, 919 N.Y.S.2d 465, 944 N.E.2d 1104, quoting American-European Art Assoc. v. Trend Galleries, 227 A.D.2d 170, 17 1, 641 N.Y.S.2d 835). "To create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms" (Matter of Express Indus. & Term. C01p. v. New York State Dept. of Tramp. supra at 589; see 2004 Jl1cD011ald Ave. Realty, LLC v. 2004 McDonald Ave. Co1p., 50 A.0.3d 1021, 1021- 1022, 858 N.Y.S.2d 203 [2 11d Dept. 2008]; Mainline E/ec. Corp. v. Pav-Lak Indus., Inc., 40 A.D.3 d 939, 939, 836 N.Y.S.2d 294 [211d Dept. 2007]; Mira11co Contr., Inc. v. Pere/, 29 A.0.3d 873 , 873, 816 N.Y.S.2d 516 [2 11c1 D ept. 2006))." (Id. at 950). " (C]ourts look to the basic elements of the offer and che acceptance to determine whether th ere is an objective meeting of the minds sufficient to g ive rise to a binding and enforceable contract" (Metro. Lofts ofNY, LLC v. Metroeb Realty 1, LLC, 160 A.D.3d 632, 635-36, 75 N.Y.S.3d 271, 274-75 [2 11<l D ept. 2018], quoting Matter of Express Indus. & Term. Corp. v. New York State Dept. of Tnmsp ., supra at 5 89. In the case before us we have the testimony of Mr. Boss and portions of Mr. Kohler's testi mony as well as the submitted invoices w hich all confirm an objective intent to perform the work in question. Page 22 of 39 [* 23] Walter Boss, Inc. v Jay Clecny, et al. Index No.:01364312008 Assuming, arguendo that Mr. Boss and the Defendants intended to memoriali ze the construction project at a later time, this does not preclude the creation of a contract before then. " [E]ven where the parties "anticipat[e] that a more forma l contract will be executed later, the contract is enforceable if it embodies all the essential terms of the agreement" (Metro. Lofts of NY, LLC v. Metroeb Realty 1, LLC, supra at 635-636, quoting Wronka v. GEM Community Mgt., 49 A.D.3d 869, 871 , 854 N.Y.S.2d 474 [211d Dept. 2008]; see Maccioni v. Guzman, 145 A.D.2d 415, 4 16, 535 N.Y.S.2d 96 [2"d Dept. 2008]). The subj ect matter of the agreement between the Plaintiff and the Defendants is not governed by any of the prohibitions of the Statute of Frauds s ince by its terms it was to be completed within one year (Halpern v. Shafm11, 131 A.D.2d 434, 435, 516 N. Y.S.2d 83, 84 [2 11d Dept. 1987]; GOL § 5-701 [a][l]). In her scholarly Brief, Ms. Blair quotes, at length, the holding in S ilber v. New York Life Ins. Co. , 92 A.D.3d 436, 938 N.Y.S.2d 46 (I st Dept. 2012). The Silber Court found that since the Plaintiff had failed to prove the existence of a contract " ... there was no "meeting of the minds,, constituting the formation of a contract between the parties. It is axiomatic that a party seeking to recover under a breach of contract theory must prove that a binding agreement was made as to all essential terms (Pllz v. Singer Co. , supra). We agree with Counsel that the legal principles discussed above arc beyond peradventure. Defense Counsel follows th is recitation of law with che contention: " ... although contracts can sometimes be created by an assimilation of documents that does not exist here. Plaintiff cannot prove that any of the documents other than the one that Defendants admit to receiving (Plaintiff's Exhibit 20) were exchanged between the parties." (Brief of Ms. Blair). The Defendants argument can only find purchase if the Court accepts the credibility of their testimony. We do not. Mr. Boss ' honest testimony with accompanying documentary Page 23 of 39 [* 24] Index No.:01364312008 Walter Boss, Inc. v Jay Cleary, et al. evidence satisfies the rule in Silber. Thus, the carefully crafted arguments of Ms. Blair and Mr. Schlimbaum fall before the truth revealed at trial. In addition to the proof listed above, the Defendants claims of the lack of a contract are contradicted by the house itself. As the days turned into weeks, into months, it slowly took its present form under the watchful gaze of the Defendant Kohler. As Mr. Boss and his employees toiled in erecting the edifice, Mr. Kohler was present, observing and, most critically, consenting to the work. Mr. Kohler's protestations to the contrary, the Court finds that he was presented with specific invoices detailing materials prov ided and services rendered (Plaintiffs Exhibits 7, 8, 9, 10, 1 l, 12, 17, 18, 19 and 21). We draw Defendants' attention to the November 21sr,2006 Invoice for $7,200.00 (Plaintiffs Exhibit l); the August 2°t1, 2007 invoice for $508,095 .00 (Plaintiffs Exhibit 19); arid the September 5111, 2007 invoice for $2,060.57 (Plaintiffs Exhibit 21). They do not stand alone but are buttressed by supporting documents and the credible testimony of Mr. Boss. There is no other logical explanation to Mr. Boss' continued efforts which resulted in a "tenant ready" home in May of 2007 aside from the existence of a contract to perform the work. Accordingly, the Court finds that the credible proof establishes that the Plaintiff has proven, by a fai r preponderance of the ev idence, its claim that it entered into a contract with the Defendants ·and performed its obligations under same. The Defendants, however, breached said contract by failing to pay the sums outstanding under the contract. We now turn to Plaintiffs cause of action for an account stated: "An account stated is an agreement, express or implied, between the parties to an account based upon prior transactions between them with respect to the correctness of account items and a specific balance due on them" which is ' independent of the original obligation'" (Episcopal Health Servs., Inc. ''· Pom Recoveries, l11c. , 138 A.D.Jd 917, 919, 31 N.Y.S.3d l l 3, 11415 [2 11<1 Dept. 20 16], quoting Citiba11k /S.D.j v. Cutler, 112 A.D.3d 573, 573-574, 976 N.Y.S.2d 196 [211c1 Dept. 2013)). Page 24 of 39 [* 25] Walter Boss, Inc. v Jay Cle01J1, et er/. Index No. :0136./312008 Although it is a separate and distinct theory ofrecovery, it necessari ly arises from the same circumstances which bestow the right to sue for breach of contract (Id. 114-115 citing A. Montilli Plumbing & Heating Corp. v. Vale11til10, 90 A.D.3d 961 , 962, 935 N.Y.S.2d 647 (2 11d Dept. 201 1]). Mr. Boss' testimony and supporting documentation demonstrates that the following chronology of relevant events occurred: On 02/ 16/2007, Mr. Boss gave an estimate to Mr. Kohler (Plaintiff's Exhibit 7). On 03/2612007, a meeting with Mr. Kohler resulted in the preparation of a new invoice being presented to him on 04/07/2007. This invoice reflected an agreed upon price of $501, 180.00 which was received without objection (Plaintiffs Exhibits 8, 9 and 10). Another invoice was prepared and g iven to Mr. Kohler on 04/2912007, with a price of$507,995 .00 (Plaintiffs Exhibits 11 and 12). Again, no objection was made to Mr. Boss' demands at that time. Ultimate ly, Mr. Boss prepared, and delivered, a final invoice which indicated "adjustments on the as-built s tructure" (Brief of Mr. Snead, Plaintiffs Exhibi ts 17, 18, 19, and 20). This was in August of2007. It was at this time that the Defendants bestirred themselves to object via an email Mr. Kohler sent to Mr. Boss on August l 6tt1, 2007. (Exhibit A). We note this objection was posed only after the conversation of Mr. Boss and Mr. Cleary at the Fire Is land Pines ferry dock in August of 2007 (Trial Transcript 3/30/2007, p.129). "An essential element of an account stated is that the parti~ s came to an agree ment with respect to the amount due" (Episcopal Health Servs., supra at 9 19, citing Rayto11e Plumbing Specialities, Inc. v. Smw Constr. Corp., 92 A.D.3d 855, 856, 939 N.Y.S.2d 116). Following the Genera l Rule of Contracts, silence alone cannot be deemed as agreement. In some circumstances, however, " in the absence of an objection made within a reasonable time, an implied account stated may be found" (Episcopal Health Servs. supra, citing Interman Inds. Prods. v. R.S.M. Electron Power, 3 7 N.Y.2d I 5 l , 154, 37 1 N.Y.S.2d Page 25 of 39 [* 26] Index No.:01364312008 Walter Boss. Inc. v Jay Clem:}'. et al. 675, 332 N.E.2d 859). As stated in the case o f Bra11ch Servs., Inc. v. Cooper, 102 A.D.3d 645 , 646, 961N.Y.S.2d 170, 173 (211d Dept. 20 13): "An agreement may be implied \Vhere a defendant retains bills without objecting to them w ithin a reasonable period ohime or makes partial payment on the account." (Id. at 646) citing American Express Ce11turio11 Bank v. Cutler, 81 A.D.3d at 762, 916 N.Y.S.2d 622; see Landau v. Weissman, 78 A.D.3d 661 , 662, 913 N. Y.S. 2d 107. In opposition to Plaintiff's cla im, the Defendants rely on the holding in M & A Const. Corp. v. McTague, 2 l A.D. 3d 610, 6 11-1 2, 800 N. Y.S.2d 235 (3rd Dept. 2005). In that case, the Court reasoned: "Where either no account has been presented or there is any dispute regarding the correctness of the account, the cause of action fails (see Abbott, D1111ca11 & Wiener v Ragusa, 214 AD2cl 4 12, 413 [1995]). Here, the Supreme Court fo und that Defendan ts disputed aspects of the accounts and informed Plaintiff that payment was being withh eld because certain work had not been completed. Moreover, Plainti ff admi tted that at least one of the accounts was not correct." (Id. at 61 1-612). We fi nd the Defendants' reliance on M & A Const. (and its like) to be mi sp laced. Once again, this argument presumes th e Court giving credence to the testimony of the D efendan ts. To th e contrary. thi s Court g ives full credit to Mr. Boss' sworn statements at tria I. The Defendants' partial payments tendered to Boss Inc. are also a factor which we must consider. The Court in Jaffe v. Brow11-Ja.ffe, 98 A.D.3d 898, 951 N.Y.S.2d 142 (151 Dept. 2012) stated " ... either retenti on of bills w ithout objection or partial payment may give rise to an account stated" (Id. at 899), quoting Morrison Colten Singer & Wei11stei11, LLP v. Waters, 13 A.D .3d 51, 52, 786 N. Y.S.2d 155 [ 151 Dept. 2004]). Page 26 of 39 [* 27] Index No. :01364312008 Walter Boss, Inc. v Jay Clemy, et al. Under these circumstances, the facts at trial, with one exception, are governed by the rule in Bay Ridge Lumber Co. v. Summit Renovation C01p., 27 1A.D.2d 559, 706 N.Y.S.2d 155 (2 11d Dept. 2000) where the Court stated that since" ... the defendant did not object to the Invoices it received within a reasonabl e period of time, its retention of them without objection gave rise to an enforceable account stated." (Id. at 560), citing Peterson v. /BJ Schroder Bank & Trust Co., 172 A.D.2d 165, 166, 567 N.Y.S.2d 704; Chemical Btmk v. Kaufman, 142 A.D.2d 526, 527~ 530 N.Y.S.2d 582; Marino v. Watkins, 112 A.D.2d 511, 490 N.Y.S.2d 917; Rosenman Colin Freund Lewis & Cohen v. Neuman , 93 A.D.2d 745, 461 N.Y.S.2d 297; see Nebraska/and, Inc. v. Best Selections, Inc. , 303 A.D.2d 662, 664, 757 N.Y.S.2d 94, 96 [2 11d Dept. 2003]). The final, and determinative, question as to whether Plaintiff has proven an account stated concerns the timeliness of Mr. Kohler's objection. As noted by Mr. Snead: "The retention of invoices for a period of several months without dispute has been found sufficient to substantiate an account stated" see Jim-Mar Corp. v. Aquatic Const., Ltd., 195 A.D.2d 868, 870 (3d Dept., 1993) (6 months); Marino v. Watkins, 112 A.D.2d 511, 513 (3d Dept., 1985) (3 months). The transaction in Jim-Mar was a single invoice submitted over five months prior to the objection (Id. at 869). The Court in Marino addressed a scenario where the Defendant '"retained Lmultiple] bills for lhe unpaid services withoul objection for severa l months" (Id. at513). In add ition to the above case law provided by Counsel, the Court is guided by the Decision in Herrick, Feinstein., LLP v. Stamm, 297 A.D.2d 477, 746 N.Y.S.2d 712 (1st Dept. 2002). The Appellate Court held that an objection sufficient to defeat a claim for an account stated had been made by the Defendant. The Court specified that the reason fo r the objection being timely was that the first objection had been made " approximately two months after receipt of the first of the invoices." (Id. at 478). Page 27 of 39 [* 28] Walter Boss. Inc. v Jay Cle01y, et al. Index No.:0136./312008 Applying the rationale of Herrick to the instant case, Mr. Kohler's first objection, fo r the purposes of the case, is not measured against the last invo ice. Instead it is set against the invoices of 02/ 1612007 and 0410712007. In either event, his objection came too late to be considered timely. We now turn to the question of whether the facts sustain the Plaintiffs cause of action seeking to foreclose upon a mechanics li en. The Plaintiff contends that the proof entitles it to a judgment of fo reclosure on the lien filed against the locus in quo (Lien Law §3 ); West-Fair Elec. Co11trs. '" Aet11a Cas. & Sur. Co. , 87 N.Y.2d 148, 157, 638 N.Y.S.2d 394, 661N.E.2d967; Sky-Materials Corp. v. Frog Hollow Industries, Inc., 125 A.D.3d 751 , 752 (2d Dept. , 20 15] 4 N.Y.S. 3d 91; Interstate Home Builders, Inc. v. D 'A11dre{I Constr., Inc., 2001 N.Y. Slip. Op. 40515 [U], 200 1 WL 1682795 [Sup. Ct. , Bronx Co. 2001] [not. rep.]). The Defendants, however, contend that the liens should be d ismissed based upon: the fa ilure to j o in necessary parties, for being willfully exaggerated and for bei ng otherwise defective (Lien Law Sec.44). N.Y. Lien Law§ 39 states: "In any action or proceeding to enforce a mechanic's lien upon a private or public improvement or in which the va lidity of the lien is an issue, if the court shall find that a li enor has wi lfully exaggerated the amount for wh ic h he cla ims a lie n a s sta ted in his notice of lien, his lien shall be declared to be void and no recovery shall be had thereon." Regarding Lien Law Sec. 39, a plain reading of this Statute indicates that "willful" requires proof of an intentional, deliberate act (Garrison v. All /'fl{lse Structure Corp., 33 A.D.3d 661 , 662, 821 N .Y.S.2d 898, 899 [2nd Dept. 2006], citing Fidelity N. Y. v. Kensi11gton-Jofl11son Corp. , 234 A.D.2d 263, 65 1 N.Y.S.2d 86 (2nd Dept.1996]; Perma P{lve Contr. Corp. v. Paerdeg{lt Boat & R{lcquet Club, 156 A.D.2d 550, 552, 549 N .Y.S.2d Page 28 of 39 [* 29] Index No.:01364312008 Walter Boss, Inc. v Jay CleClly, et al. 57 [2ndDept. l 989];Mi11elliC011str. Co, v.Arbe11Corp.,1A.D.3d580, 581, 768N.Y.S.2d 227 [2nd Dept.2003]). It clearly does not contempl ate ''an exaggerated amount clue to honest mistake" (Goodman v. Del-Sa-Co Foods, /11c., 15 N.Y.2d 191 , 257 N.Y.S.2d 142 [1965]). App lying this standard it is apparent that the credible evidence does not support the view that Mr. Boss willfully exaggerated the amount of the li en on the Defendants ' property. The Defendants' argument relating to the fa ilure to join necessary parties (Lien Law Sec.44) is similarly unpersuasive. Relying on authority such as A dmiral Transit Mix Corn, v. Sagg-Bridgehampto11 Corn. , 56 Misc.2d 47, 5 1, 287 N.Y.S.2d 75 1 (Sup. Ct. Suffolk Cty. 1968), Defense Counsel contend that the om ission of Mr. John O ' Connor and mortgage holders MERS, C itibank and National C ity Bank from the notice of lien requ ires dism issal. We disagree. Plaintiffs Counsel asserts that prior mortgagees are not necessary parties to a mechanic's lien foreclosure proceeding. In support of thi s pos ition Mr. Snead cites to the authority found in Robert Allen Assoc's. Inc. v. Can1er Fed. Sav. & Loan Ass'11. , 66 Misc.2d 202, 203 (App. Term, l51 Dept., 197 1); A dmiral Transit Mix Corp. v. Sagg- Bridgelzainpton Mix Corp., supra; Brown v. Da11fortlz, 37 A.D. 321 , 322-23 [4th Dept., 1899]; A lyea v. Citizens Sav. Bank, 12 A.D. 574, 577 [l51 Dept., 1896]; and H.M. Hughes Co. v. Carmauia New York, N. V. ,1989 WL 63 109, * l [S.D.N.Y ., 1989], unreported on F. Supp.)]. Both Plaintiff and Defendants reliance on Admiral Transit Mix is most telling though we find it to favor the Plaintiffs, cause. The Court in Admiral specified that the notice requirement did not apply to prior mortgagees. (Id. at 51 ). Moreover, the Court a lso declared "even as to persons who are necessary parties, it is they who have not been served who may comp lain, not those who have been served" (Id. at 5 I), quoting W. J. Plander Bloc!<, Inc. v. Mussier, 27 Misc. 2d 591, 592 212 N.Y.S.2d 558 [Sup. Ct. Nassau Co. 1961]). Page 29 of 39 [* 30] Walter Boss, Inc. v .Jay Clemy . et ed. Index No.:0136./312008 The Court will now consi.d er Defendants arguments concerning the multiplicity oflien notices and their purported deficits. Plaintiff claims that this argument has been waived since it was not the subject of a motion to dismiss or fashioned as an affirmative defense (relying on the authority in 2 N. Y. Prac., Com. Litig. in New York State Courts§ 2:3 l (2d Ed.) Siegel, N.Y. Prac. § 113 (4th ed.), McKinney's CPLR Rule 320. (Ramos v. 145 Bleeker Street Corp., 26 Misc.3d 1237 (A], *3 [Sup. Ct., Kings Co., 20 l OJ (Unrep. Dec]). We are persuaded, however, by the Defendants contention that it is not an affirmative defense to oblige a Plaintiff to prove that their lien is in conformance with statute. As pointed out by Defense Counsel, instead of a single lien, there are a series of five notices of lien filed against E leven Ocean Walk (Plaintiffs Exhibits 59 . and 76 and Defendants' Exhibits W, X and Y). Defense Counsel directs the Court to the portions of each notice that indicate the date Mr. Boss started working at Eleven Ocean Walk. In Plaintiff's Exhibit 76, the effective date is " on or about October 2006." Defendants' Exhibit W, has a work date of "on or about October 12 111 , 2006." Plaintiffs Exhibit 59 and Defendants ' Exhibits X and Y, state a date of"on or about October 26111 , 2006." The discrepancies do not end there. One notice of mechanic's lien, contains language wherein the Plaintiff swears that the sum due is $464,0 7 5.00. It refers co an auachment styled ''Exhibit A ." This document, however, is in the amount of $501 , 180.00. (Plaintiffs Exhibit 59 and Defendants' Exhibit W). Another notice lists a price of$464,075.00. The attachments do not reflect this. Instead "Exhibit A" consists of an 08/02/2007 invoice for $508,095.00, a 11121/2006 invoice for $7,200.00, a 09/05/2007 Invoice for $2,060.57 and a 09/10/2007 invoice summary in the amount of $5 17,355.57 (Plaintifrs Exhibit 76). Finally, two notices of a mechanic's lien refer to an attached "agreed upon estimate" and a "final bill with approved extras." Neither of these documents is attached to the notice (Defendants' Exhibits X and Y). Page 30 of 39 [* 31] Index No.:0136-1312008 Walter Boss, Inc. v Jay Clecny, el al. Lien Law Sec. 23 states: "[t]his article is to be construed liberally to secure the beneficial interests and purposes thereof. A substantial compliance with its several provisions shall be sufficient for the validity of a lien and to give jurisdiction to the courts to enforce the same." The question presented by the above mentioned factual deviations between the Notices of Lien is whether they rise to the level of prejudice. Instances where a mistaken name was applied to the property owner have been held to be of no consequence (Marshall Const. Co. v. Brookdale Hosp. Ctr., 68 Misc. 2d 20, 21, 324 N.Y.S.2d 806, 808 [Sup. Ct. Kings Co. 1971]). A notice of lien which indicates the wrong property, however, has been found to be prejudicial (Hudson Demolition Co. v. lsmor Realty Corp., 62 A.D.2d 980, 980, 403 N .Y.S.2d 327, 328 [2 11" Dept. 1978]). The reason for this is that" ... a party examining the pertinent part of the notice would not be able to identify the premises intended to be described with reasonable certainty, to the exclusion of all others." (Id. at 980), citing Hurley v. Tucker, 128 App. Div. 580, 112 N.Y.S. 980 (!51 Dept. I 908];Roshirt, Inc. v. Rosenstock, 138 Misc. 515, 247N.Y.S. 420 [Supreme Ct. Albany Co. 1930). Lien Law § 9 requires that a notice of lien contain a description of, inter alia: "4. The labor performed or materials furnished and the agreed price or value thereof~ or materials actual Iy manufactured for but not delivered to the real property and the agreed price or value thereof. 5. The amount unpaid to the lienor for such labor or materials. 6. The time when the first and last items of work were performed and materials were furnished." The absence of these items have been held to render a notice of lien to be fatally defective (Empire Pile Driving Corp. v. Hylan Sanitary Serv., 32 A.D.2d 563, 563, 300 N.Y.S.2d 434, 435 [2nd Dept. 1969], citing Riley v. Dmfey, 145 App.Div. 583, 586, 130 Page 31 of 39 [* 32] Walter Boss. Inc. v Jay Cle01:v. et al. Index No.:0136./312008 N.Y.S. 297, 299 [211d Dept.1911 ); cf Fenichel v. Zicherman, 154 App.Div. 4 71, 139 N.Y.S. 118 (!51 Dept. 1913]). In the case at bar, the Court finds that the multipl e dates, varying amounts of sums owed and inconsistent supporting documentation make it difficu lt to determine "[t]he labor performed or materials furnished and the agreed price or value thereof, as required by Lien Law§ 9 ( 4 )" (Sullivan Contmcting, Inc. v. Turner Const. Co., 60 A.D.3d 13 15, 1316, 875 N.Y.S.2d 695, 696-97 [4th Dept. 2009] citing Brescia Constr. Co. , Inc. v. Walart Constr. Co., Inc., 249 App.Div. 151 , 152, 291 N.Y.S. 960 [I s1 Dept. 1936], ajfd. 273 N.Y. 648, 8 N.E.2d 330; Flaum v. Picarreto, 226 N .Y. 468, 471 -472, 123 N.E. 739; Fa1111i11g v. Belle Terre, 152 App.Div. 718, 722-723, 137 N.Y.S. 595 [2"d Dept. l 912L see also Empire Pile Driving C01p. v. Hylan Sanitary Serv., supra]). Based on the forgoing, the Court finds that the notices of mechanic's lien are fatally defective. The Ca use of Acti on seeking a foreclosure of those liens shall be dismissed. The Court w ill address the Plaintiffs claims sounding in equity, namely: unjust enrichment and quantum meruit. Concern ing the equitable claim for unjust enrichment, Plaintiff refers the Court to the authority found in (Georgia 1l1alone & Co., Inc. v. Reider, 19 N.Y.3d 5 11,517 [2012); Mtr. ofEstate of Whitbeck, 245 A .D.2d 848, 850 [3d Dept., 1997]; Goldma11 v. Simon Property Gp., Inc., 58 A.D.3d 208, 220 [2d Dept., 2008]; L&LAuto Distributors & Suppliers v. A 11to Collection, Inc. , 23 M isc.3d 1139 [A], 2009 WL 1652852, *5, [Sup. Ct., Kings Co., 2009]; Pappas v. Tzolis, 20 N .Y.3d 228, 234 958 N.Y.S. 2D 656 [2012] ; McGrath v. Hilding, 41 N .Y.2d 625, 629, 394, N.Y.S. 2d 603 [1977); and Mayer v. Bis/top, 158 A.D.2d 878, 880, 551N.Y.S.2D 673 [3d Dept., 1990]). In furtherance of his c laim that Plainti ff has proven the necessary prerequisites for quantum meruit, P laintiff s Counsel cites to Tltompson v. Horowitz, 141 A .D.3d 642, 37 N.Y.S3d 266 (2d Dept., 20 16); Mira11co Contracting, Inc. v. Pere/, 57 A.D.3d 956, 871 Page 32 of 39 [* 33] Index No.:01364312008 Walter Boss, /11c. v Jay Clemy, et al. N.Y.S. 2d 310 [2d Dept., 2008], Evans-Freke v. Showcase Contracting Corp., 85 A.D.3d 961, 926 N.Y.S. 2d 140 [2d Dept., 2011]; Jolt11so11 v. Robertson, 131 A.D.3d 670, 15 N .Y.S.3d 457 [2d Dept., 2015]; Caribbean Direct, Inc. v. Dubset, LLC, 100 A.D.3d 510, 954 N.Y.S.2 66 [2d Dept., 20 12]; Brennan Beer Gorman/Architects, LLP v. Cappelli Enterprises, Inc. , 85 A.D.3d 482, 9250, N.Y.S.2d 25 [1 st Dept., 2011] ; as well as PJI Civil. Div. 4:2)]. Defendants, however, contend that the authority found in Precision Founds v. Ives, 4 A.D.3d 589,772 N.Y.S.2d 116 (3 rd Dept. 2004); Crown Co11structio11 Builders v. Chavez, 130 A.D.3d 969, 15 N.Y.S.3d 114 [2d Dept. 20 l 5];Steplum B. Gleich & Assoc, v. Gritsipis. 87 A.D.3d 2 16, N.Y.S.2d 349 [2d Dept. 2011]; see JSO Assoc., Inc, v. Price, 104 A.D.3d 737, 738, 961 N.Y.S.2d 245 (2nd Dept. 2013]; AHAA Sales, Inc, v. Creative Bath Prods., Inc., 58 AD3d 6, 867 N.Y.S.2d 169 [2d Dept 2008]; see Nemeroff v. Colby Group, 54 A.D.3d 649, 651, 864 N.Y.S.2d 25; GeNildi v. Me/amid, 212 A.D.2d 575, 622 N.Y.S.2d 742 [2nd Dept. 1995)) mandate a dismissal of these claims. The Defendants also contend that the Plaintiff may not make an equitable claim because he lacks clean hands. The doctrine of clean hands was poetically expressed as "He that hath committed inequity, shall not have equity" (Maxims of Equity, Richard Francis, 1728, Maxim II; Pomeroy§ 398). In the case of Columbo v. Columbo, 50 A.D.3d 617, 619, 856 N.Y.S.2d 159 (2 11d Dept. 2008), cited by Ms. Blair, the Court expounded on this principle. "The doctrine of unclean hands applies when the complaining party shows that the offending party is gui lty of immoral, unconscionable conduct and even then only when the conduct re lied on is directly related to the subject matter in litigation and the party seeking to invoke the doctrine was injured by such conduct." (Id. at 619), citing Kopsidas v. Krokos, 294 J\.D.2d 406, 407, 742 N.Y.S.2d 342 [211d Dept. 2002]). Page 33 of 39 [* 34] Index No.:0136./312008 Walter Boss. Inc. v Jay C/e01y, et al. Defendants claim of the Plaintiff lacking clean hands is based on his purpo11ed lack of veracity at trial. This is insufficient and in any event the Court has found Mr. Boss to be a credible witness. It is beyond cavil that in order to prove unjust enrichment: "[a] plaintiff must [demonstrate] 'that (1) the other party was enriched; (2) at that party's expense; and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered"' (Georgia Malone & Co. v. Rieder, 19 N.Y.3d 511, 516, 950 N.Y.S.2d 333, 973 N .E.2d 743 (2012], quoti ng 1lfa11dari11 Trading Ltd. , (SUPRA?) 16 N.Y.3d at 182, 919 N.Y.S.2d 465, 944 N.E.2d 1104 [2011]). Privity is not a prerequisite . . A party moving forward with a claim for unjust enrichment, however, bears the burden of showing that "assert a connection between the parties that [is] not too attenuated" (Philips /11t'l lnvestme11ts, LLC v. Pe/'1or, 117 A.D.3d 1, 7, 982 N.Y.S.2d 98, 102 [1st Dept. 2014], quoting Georgia Malone, supra at 5171). "The elements of a cause of action sounding in quantum meruit are (I) performance of services in good faith; (2) acceptance of services by the person to whom they are rendered; [citations omitted] ; (3) expectation of compensation therefore; and (4) reasonable value of the services rendered" Home Const. Corp. v. Beaury, 149 A.D.3d 699, 702, 50 N.Y.S.3d 530, 533 (2 11d Dept. 2017]). Comparing these two theories of equity, it is apparent that although their elements are different, unjust enrichment and quantum meruit arc frequent companions and liability for both can arise from the same facts. The Defendants argue that: "There is also no undispu ted trial evidence setting forth that the defendants ever agreed to having certain work done at their house. Acceptance of the work by defendants does not prove that plaintiff is ab le to recover, for there was no value attached to that work, much less an agreed value." (Brief of Ms. Blair, p.41 ). Page 34 of 39 [* 35] Index No.:013643/ 2008 Walter Boss, /11c. v Jay Cleary, et al. Although Counsel puts this forth w ith expected eloquence, the Court's finding of fact casts this argument down. Once again, Mr. Boss ' testimony establishes that the Defendants did agree to the construction at Eleven Ocean Wall<. The va lue fo r the work is found in the invoices referred to herein. Indeed, the P lain ti ff has proven that all of the elements of unj ust enrichment and quantum meruit have been met. Based upon the representations of the P laintiff, Boss Inc. performed the construction in good fa ith and in the time specified. The work was accepted by the Defendants. As evidenced by credib le testimony and exhibits (i.e., the invoices) the work was performed with the reasonable expectation of payment. The reasonable value of the services is found in the invoices themselves. The Defendants were enriched by the construction of a four bedroom house wh ich immediately began generating revenue for the Defendants, $35,000.00 for the first summer (Plaintiff's Exhibit 30). The Plaintiff has suffe red the loss of income for its services. Under these circumstances, "equity and good conscience" mandate that the Defendants reimburse the P laintiff for its loss. There is, however, an impediment to Plaintiffs recovery in equity. The venerable maxim aequitas sequitur legem* reminds us of the limi tations of pleading in equity (Ryback v. Lomenzo, 38 A.D.2d 915, 916, 330 N.Y.S.2d 76, 79 [151 Dept. 1972]). As noted in the case of Thompson v. Horowitz, supra at 642, cited by Plaintiff, quantum meruit is" .. .an alternative to breach of contracc [emphasis ours)." (Id. at 646. (Citations omit ted ). Since this Court has foun d that Plaintiff has proved its cause of action for breach of contract and has satisfied the criteria for an account stated, its claims sounding in equity, namely quantum meruit and unjust enrichment, become untenable. As the Court held in Russo v. Heller, 80 A.D.3d 531 , 532, 915 N.Y.S.2d 268, 270 (1st Dept. 2011) "a party may not recover in quantum meruit or unjust enrichment where the parties have entered into a contract that governs the subject matter" (/d. at 532, quoting Cox v. NAP Constr. Co., Inc., Page 35 of 39 [* 36] -Index No.:0136../312008 Walter Boss, Inc. v Jay Clec11 y, et al. 10 N.Y.3d 592, 607, 86 l N.Y.S.2d 238, 89 1N.E.2d271 (2008] ; see Clark- Fitzpatrick, Inc. v. Lo11g Is. R.R. Co. , 70 N.Y.2d 382, 388, 52 1 N.Y.S.2d653, 516 N.E.2d l90 [1987]). Accordingly, the Plaintiffs claims sounding in equity, though proven, must be dismissed since they have been subsumed by the Plaintiffs success in prevailing on the question of breach of contract. The Court will now address the Defendants (Mr. Jones and Mr. Kohler) counterclaim for repair work and other expenses purportedly caused by Boss Inc. 's fai lure to perform its duty in a workmanlike manner. As noled above, Mr. Jones testified that a railing had to be replaced at a cost of $9,025.00. (Trial Testimony4/28/20 17) pp.568-569, Defendants Exhi bit S). Additionally, Mr. Jones also indicated that the Defendants were forced to pay $25,000.00 to Mr. Matt Sullivan for sheet-rock work at Eleven Ocean Walk (Trial Testimony p.551 , lines 12-23). Mr. Kohler testified that he gave Mr. Boss approximately $30,000.00-$35,000.00 in cash (Trial Testimony pp.163-164 ). Additionally, he averred that the Defendants were obliged to: replace the w ire railing systems ($9,025.00); pay Michele Quatrale to obtain a building permit ($3 ,86 1.93 ); pay Mr. Mall Sullivan to install s heet-rock ($25,000.00); and make cash payments to Mr. Boss that were not accounted for ($30,000.00 to $35,000.00). Mr. Jones indicated that he and/or Mr. Kohler were constrained to retain an architect and obtain plans for $4,500.00. (Trial Testimony p.573, lines 2-1 2). The Defendants also claim that Mr. Boss did not acknowledge a check payment in the amount of $ 10,000.00 by Defendants. Defense Counsel contends that these expenses on the part of the Defendants total $94,386.93. It is well settled to the point of being a truism, that a defendant must prove their counterclaim by the same standard of proof as if they were a plaintiff (A m. Oil Co. v. Coug'1/i11 , 26 1 A.D. 852, 852, 24 N.Y.S.2d 731, 731 (3rd Dept. 1941 ); James K Tllomso11 Co. v. Jnt'l Compositions Co., 191 A.D. 553, 556, 181 N.Y.S. 637, 639 (1 s i Dept. 1920). Page 36 of 39 [* 37] Walter Boss, Inc. v Jay Clecny, et al. Index No.:0136./312008 In light of the Court's finding that the De fendants testified less than credibly, the only manner in which the counterclaim can succeed is if it based on unequivocal documentary evidence. Winnow ing the Defendants evidence in this fashion, their counterclaim is significantly diminished. The testimony of cash payments to Mr. Boss is discounted and stands unproven. Defendants Exhibit S is not a receipt. It is a copy of an e-mail from Mr. Jones to his prior Attorney in which he claimed he made two payments to Coastline Freight for repairs to the railing system installed by Plaintiff. Defendant's Exh ibit R-2 is a copy of their check payable to Michelle Quatrale in the sum of $3,86 1.93. S ince the Court credits Mr. Boss' testimony concerni ng Ms. Quatrale's being hired by the Defendants, thi s bill cannot be assessed against the Plaintiff. Regarding the Defendants claims arising from all eged defective work, no expert testified to inferi or workmanship nor were invoices for materials produced at trial. It was admitted by Mr. Boss, however, that the railing system he had installed at the property was not up to the standards of applicable building codes. (Trial Testimony 03 /30/2017 at page 71, line 24 to page 72, line 2 and page 72, line 3 to page 72, lin e 16). This corroborates Defendants claim to have paid $9,025.00 for its repair. The testimony ofM.r. Nelsen, whom the Court considered to be a forthright witness, provides the corroboration for the Defendants otherw ise unre liable proof. Defenda nt's Exhibit AA is a printout of a bill for the work done at Eleven Ocean Walle It is in the amount of $6, 135.00. Mr. Nelsen's testimony on 04/28/2017 demonstrates that this is still due. (Trial Transcript 04/2 8/20 17 p.513). Defendants also submitted a copy of a check, check number 1280 dated 04/30/2007 (Defendants' Exhibit R-1). Th is check was in the sum of $ 10,000.00 and it is not reflected on an invoice submitted by Plaintiff at trial. Page 37 of 39 [* 38] ....... Index No.:0136./312008 Walter Boss, Inc. v Jay Clea1y, et al. According ly, this Court finds that the only aspects of the Defendants' counterclaim that has been proven by the fa ir preponderance of the credible evidence is the uncredited check for $10,000.00 (Exhibit R-1 ), the expenses ofrepairing the railing ($9,025.00) and the electrician 's bill for Mr. Nelsen ($6, 135 .00) (Exhibit AA). The Defendants will be awarded the sum of $25,160.00 on their counterclaim. It shall be appl ied as set-off against the Judgment awarded to the Plaintiff. Liability having been established in favor of the Plainti ff and against the Defendants on the issue of liability for breach of contract, the Court will now consider damages for same. Damages for an account stated would of necess ity be redundant and that theory of li ability will not be further considered. The measure of damages for breach of contract is to give to the non-offending party the benefit of th e bargain, namely place them " ... in same s ituation as if contract had been fully performed" ( Carecore Nat., LLC v. New York State Ass '11 ofMed. Imaging Providers, Inc., 24 A.D.3 d 488, 490, 808 N.Y.S.2d 238, 239 [2 11 d Dept. 2005]; citing Brown v. Lockwood, 76 A.D.2d 72 1, 432 N.Y.S.2d 186 [211d Dept. 1980]; see Process Am., Inc. v. Cy11ergy Holdings, LLC, 839 F.3d 125, 143 [2d Cir. 20 16]). The Defendants argue that the Plaintiffs' claims must be dismissed because Boss Inc. fai led to provide expert witnesses on the question of damages citing Home Constr. Co111 v. Beaury, supra; Bfin([s to Go, Inc. ,,, Times l'/aza D e vel., L.l'. , 88 A.D.3d 838 (2d Dept., 201 1]; Evrms-Freke, v. Showcase Contracting Co111., supra. We disagree. Contrary to the Defense's assertions, the lack of an expert witness as to the value of Boss Inc. 's services does not bar recovery. The Rule stated in the case of Even-Freke v. Showcase Contracting Corn., cited by Defendants, noted the use of hourly labor rates etc. which" ... were supported by the invoices admitted at tria l." (Id. at 963). Although useful, an experts testimony is not necessary to establish damages when they can be established via reliable lay testimony, invoices and other specific indicia of loss (S.J. Kula, Inc. v. Carrier, 107 A.D.3d 1541 , Page 38 of 39 [* 39] Index No. :0136./312008 Walter Boss, Inc. v Jay Cleary, el al. 1542-43, 967 N.Y.S.2d 804, 806 (4111 Dept. 2013), citing Reed Paving v. Glen Ave. Bldrs., 148 A.D.2d 934, 935, 539 N.Y.S.2d 173 [4th Dept. 1989]; see CNP Meclt., Inc. v. Allied Bldrs., Inc. , 84 A.D.3d 1748, 1749, 922 N.Y.S.2d 688]). In addition to Mr. Boss' testimony, Plaintiffhas offered invoices, punch lists, canceled checks and estimates which detail the amount of work it performed. The materials expended, the payment which was agreed upon for same, the partial payments to credit the Defendants and the final amount of due and owing from the Defendants were all set forth. Totaling these items less credits for payments made, the Court agrees that the Plaintiff has proven damages in an initial amount of $326,355.57. After deducting the Defendants award on the counterclaim ($25, 160.00), the total amount of Plaintifrs damages is $301,195.57. Pursuant to CPLR § 500 1(a) (b), Plaintiff shall be awarded statutory interest (CPLR 5004) as of September I 0 1' \ 2007 the date Plai ntiffdemanded final payment via certified mail (Plaintiffs Exhibit 22). ( Yellow Book of New York, L.P. v. Cataldo. 81 A.D.3d 638, 917 N.Y.S.2d 215[2 11d Dept. 2011]). Settle Judgment. The foregoing constitutes the decision and Order of the Court. DATED: NOVEMBER pt, 2018 RIVERHEAD, NY I __, f HON. JAMES HUDSON Acting Justice of the Supreme Court * Equity follows the law Page 39 of 39

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