Cohen v Belgrove Appliance Inc.
Annotate this CaseDecided on January 3, 2018
City Court of Mount Vernon
Barbara J. Cohen, Plaintiff,
against
Belgrove Appliance Inc., CARLITA BELGROVE, Defendants.
2818-16
Adrian N. Armstrong, J.
Plaintiff, Barbara J. Cohen brings this small claims proceeding against the defendants, Belgrove Appliance Inc. and Carlita Belgrove, alleging a breach of contract and property damage. The parties appeared before the Court and a trial began on March 31, 2017 and continued on several dates thereafter, concluding on September 15, 2017.
Both the plaintiff and defendant, Carlita Belgrove testified at trial. The evidence at trial showed that the plaintiff engaged the specialty services of defendants to provide a full diagnostic service relating to the repair and partial restoration of a vintage 1970's Crown 6 burner, double oven/broiler stove. Plaintiff, on October 14, 2015, delivered the vintage stove to defendant's shop with the understanding that defendants would perform a diagnostic service, identifying existing conditions and status of the various working parts. The plaintiff then understood that the diagnostic service would be the basis from which a scope of work would be developed and presented in a contract.
On or about, November 2, 2015, defendants emailed Quote #1358 to plaintiff delineating the work to be performed, and the following day, November 3, 2015, defendants emailed Invoice # 3185 to plaintiff requesting $1,900.00 as a deposit for the service of cleaning and partial restoration of the subject stove. Plaintiff paid that deposit, and there is no dispute between the parties that the plaintiff paid a total of $4,339.57 for the work. An additional $750.00 was paid by the plaintiff to the defendants for additional painting of the stove top. The dispute centers around the specific work to be done, and the quality of that work.
Plaintiff contends that defendants failed to fulfill its contractual obligations by either preforming certain tasks in an unsatisfactory manner or not performing them at all. Plaintiff maintains that she contracted for a Tier one Cleaning and Partial Restoration, while the defendants maintain that the agreement between the parties was not a Tier one job, but a regular cleaning and partial restoration. The evidence [*2]presented to the Court establishes that the written contract between the parties was a Tier one job with specific work to be done. Specifically, an email from the defendants to the plaintiff dated June 18, 2016 state "we did your job as a regular cleaning and partial restoration, and not a tier one partial restoration, but your contract said tier one" (Plaintiff exhibit 15 in evidence). While the testimonial and written evidence established that over several months, the defendants performed restoration work on the stove, defendants admittedly failed to perform the list of specific work tasks pursuant to the Tier one contract.
Pursuant to Uniform City Court Act § 1804, plaintiff submitted one estimate from each of two contractors, in the amounts of $1,615.52 and $1,094.02 respectively, to establish the reasonable cost and necessity of re-enameling the damaged stove top. Defendant failed to establish that a lesser measure of damages than the cost of the itemized repairs, as established by these estimates, would sufficiently compensate plaintiff for her loss (see Jenkins v Etlinger, 55 NY2d 35, 39 [1982]; Barron v Dube, 48 AD3d 1059 [2008]). Substantial justice (UCCA 1807) requires that the award in favor of plaintiff should properly be limited to the amount of the lower estimate of $1,094.02.
Defendants did admit to not repairing the electrical clock pursuant to the contract, and Ms. Belgrove testified the estimated cost to be $425.00.
Plaintiff did provide proof of payment of $108.63 for one drip pan. Five additional drip pans would be needed to be re-chromed for a total of $543.15. All other damages requested by plaintiff have not been proven by either expert testimony, two estimates or paid receipt.
Plaintiff called, Danielle Leon, a furniture restorer, and admittedly a personal friend to testify on her behalf. Defendants called four witnesses, Anthony Guglielmo, President of Metal Man Restoration and three other witnesses that either worked on the repair of the plaintiff's stove or testified about the defendants' workmanship. The witnesses called by the parties provided the Court with helpful background information, however, the Court's decision is based primarily on the testimony of the parties and the documentary evidence presented in the record.
Since "a corporate officer who executes a contract acting as an agent for a disclosed principal is not liable for a breach of the contract unless it clearly appears that he or she intended to bind himself or herself personally" (Ho Sports, Inc. v Meridian Sports, Inc., 92 AD3d 915, 916-917 [2012], quoting Stamina Prods., Inc. v Zintec USA, Inc., 90 AD3d 1021, 1022 [2011]). There is no evidence that Ms. Belgrove agreed to bind herself personally with respect to the transaction with plaintiff (GMS Batching, Inc. v TADCO Const. Corp., 120 AD3d 549, 552 [2014]; McDonagh Real Estate & Dev. v Kwilecki, 158 AD2d 372 [1990]; Vessa v Gull Wing Motors, Inc., 38 Misc 3d 129[A], 2012 NY Slip Op 52390[U] [App Term, 9th & 10th Jud Dists 2012]; Rebatta v Allyn, 2 Misc 3d 132[A], 2004 NY Slip Op 50117[U] [App Term, 9th & 10th Jud Dist 2004]).
After due deliberation and careful consideration of the evidence before the court, taking into account the demeanor and non-verbal communication of each witness and consistent with the court's responsibility under Section 1804 of the Uniform City Court Act "to do substantial justice between the parties according to the rules of substantive law," I find for the plaintiff against the defendant Belgrove Appliance Inc. in the amount [*3]of $2,062.17, plus costs and interest in the statutory rate from the date of commencement of this action.
This decision complies with this Court's statutory charge to do substantial justice between the parties (see Ross v Friedman, 269 AD2d 461 [2000]).
This constitutes the Decision and Order of this Court.
Dated: January 3, 2018
Mount Vernon, New York
____________________________
HON. ADRIAN N. ARMSTRONG
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