Opinion
021081/2013
09-06-2018
William SPROSTON d/b/a Better Home Services and Contracting, Plaintiff(s), v. Sarah DIAS and John Dias, Defendant(s). Sarah Dias and John Dias, Defendants/Counterclaim Plaintiffs, Thomas Gregorius, Additional Counterclaim Defendant. Sarah Dias and John Dias, Defendants/Counterclaim Plaintiffs, v. Thomas Gregorius, Additional Counterclaim Defendant.
PAUL H. RETHIER, ESQ., Attorney for Plaintiff, PO BOX 307, 33 Rosedale Road, Sound Beach, NY 11789 MICHAEL J. SLEVIN, ESQ., Attorney for Defendants, 111 Great Neck Road, Ste. 305, Great Neck, NY 11021
PAUL H. RETHIER, ESQ., Attorney for Plaintiff, PO BOX 307, 33 Rosedale Road, Sound Beach, NY 11789
MICHAEL J. SLEVIN, ESQ., Attorney for Defendants, 111 Great Neck Road, Ste. 305, Great Neck, NY 11021
James Hudson, J.
The matter at hand is a dispute arising from a contract to renovate a home. Both the contractor (Plaintiff) and the homeowners (Defendants) claim that the actions of the other prevented the completion of the agreed upon services. These differing positions precipitated the instant lawsuit sounding in breach of contract. The Defendants have asserted a counterclaim also claiming: breach of contract; negligence; violation of Lien Law § 39 ; breach of implied covenant; and violation of NY General Business Law § 349. Additionally, the Defendants have asserted a Counterclaim against Mr. Thomas Gregorious on the basis of him being a de facto partner of Plaintiff. The Parties submitted to a non-jury trial to resolve the issues presented.
Prior to our analysis of facts and discussion of the applicable law, the Court wishes to thank Messrs. Rethier and Slevin for the commendable advocacy they displayed on behalf of their respective clients.
The Court heard and reviewed the following testimony and evidence:
Mr. William Sproston testified. We found him to be in all respects, a forthright and credible witness. He stated that he was the owner of Better Homes Services and Construction (hereinafter referred to as "BHS"). BHS is a construction company involved in the building and renovation of homes. BHS is not a business entity but is simply a D/B/A.
In 2012, he met the Defendants, Mr. and Ms. Dias, in regards to BHS performing renovations on their house at 11 Curtis Drive, Sound Beach, New York. They had a discussion and he gave them an estimate for the work. Subsequently, on March 6th, 2012, the parties entered into a contract whereby the Plaintiff would undertake construction work at the locus in quo in return for remuneration in the amount of $98,000.00 (Plaintiffs' "Exhibit 1"). The specific work agreed to by the Plaintiff in return for this sum consisted of an expansion to the second story and a breeze way. The contract contains a provision which reads: "Any alteration or deviation from above specifications involving extra costs will be executed only upon written order, and will become an extra charge over and above the estimate."
After the contract was signed, delays were occasioned by the Defendants inability to procure building permits. They were finally issued by the Town of Brookhaven on May 29th, 2012. Once these were obtained, construction began. The Defendants, however, requested work changes entailing the installation of skylights, the replacement of a porch and various repairs to the house that were not contemplated at the time of the original contract. Indeed, the changes were so extensive that the square footage of the project went from 720 square feet to 2,000 square feet. Change Orders were agreed to by the Plaintiff and Defendants which called for additional work at an additional expense. A disagreement arose between the parties as to the expectations which the homeowners had concerning the work to be performed. In September of 2012, Ms. Dias directed Mr. Sproston to quit the worksite and to refrain from further construction. Thereafter the parties negotiated a $6,800.00 credit for various tasks which had been agreed to but not performed by the time that work ceased. The Plaintiff submitted twelve photographs (Plaintiff's "Exhibit 2") which showed the progress of the work. Mr. Sproston admitted that some of the interior work had not been completed.
Mr. Sproston claims that this resulted in the Defendants owing the Plaintiff the sum of $18,000.00 on the contract and $6,000.00 owed for the extra work requested by the Defendants.
Keith Martone also testified for the Plaintiff. A master carpenter, he was employed as a subcontractor by the Plaintiff to perform carpentry work on the project at 11 Curtis Drive, Sound Beach, New York. Mr. Martone spoke of the framing work performed over the course of three to four weeks and of difficulties which arose in connection with the "tie in" of the garage and the house proper (Transcript p. 203, line 12). He also indicated that there was a change in the work order to include skylights on the second floor at the Defendants request (Transcript p. 202, line 1). He also testified that the Defendants did not speak to him of any dissatisfaction with the work performed. Robert Sproston, the Plaintiff's son, also testified. He worked at the jobsite and reiterated that the construction work was performed as directed by the Defendants.
These two witnesses appeared to testify truthfully and corroborated William Sproston's averments of the work that was performed. The Defendant on the counterclaim, Mr. Gregorious, then took the stand. He described having worked at the Dias' home during the construction for a period of time and also admitted that he had been referred to by Mr. Sproston as his partner. Mr. Gregorious was deposed on October 17th, 2014 and in response to the question: "Were you ever introduced as Mr. Sproston's partner in 2012 or prior thereto?" he answered "yes." When specifically asked if he was introduced as Mr. Sproston's partner "pertaining to the Dias job" he also admitted "yes." (Trial Transcript pp.153-154). Defendants' "Exhibit A", a copy of the Contract and Defendants' "Exhibit B," a business card for BHS with Mr. Gregorious' name printed on are also a manifestation of his connection with Mr. Sproston's business.
Ms. Sarah Dias testified for the Defense. In watching her demeanor on the stand and listening to her answers, we found her powers of observation and memory to be faulty to the point where her statements were of little utility to the Court. In describing the initial circumstances surrounding the formation of the contract, her testimony essentially paralleled that of the Plaintiff. In her litany of the events as the work progressed, however, a sharp variance in the facts was presented. Whereas Mr. Sproston indicated that he discharged his duties in workmanlike fashion, Ms. Dias stated that Mr. Sproston substituted day-laborers for skilled carpenters and the quality of construction suffered. By way of example, she indicated the front porch was poorly finished with a pillar overhanging the edge. Most importantly, Ms. Dias denies having agreed to the additional costs claimed by the Plaintiff. Her claimed understanding was that the total price for all agreed work was a total of $98,000.00.
The Defendants also called Mr. Eric Nilsson. By way of background, Mr. Nilsson described his experience as a construction contractor and as a homeowner/commercial claims adjuster. He indicated that he had performed estimates of homeowner damage claims for approximately twenty-five years. At the request of Defense counsel, Mr. Nilsson travelled to the house at 11 Curtis Drive on September 18th, 2013 and performed an inspection. This was memorialized in a written report (Defendants' "Exhibit J") which was received without objection. Mr. Nilsson stated that he performed the inspection in the company of Ms. Dias for the purpose of identifying " costs that would be associated in rectifying problems that were due to improper workmanship or other defects that were done previously by the contractor who was there (Transcript. p.339, lines 3-6). After inspecting the premises he estimated that it would cost $40,235.99 " to do the work that had not been done by the contractor and/or repair work that was defectively performed by the contractor " (Trial Transcript p.344, lines 2-9).
On cross-examination, Mr. Nilsson admitted that he was not "aware of the scope of the work that was to be performed." (Transcript p. 349). Although Mr. Nilsson reviewed the blueprints for the house, he was not shown the contract (Transcript p. 350). Indeed, Mr. Nilsson stated that at the time he arrived at his estimate, he was not aware of the contractual provision which made the Defendants "responsible for the plumbing, electric, interior doors, all trim work, master bathroom floor, all kitchen work, fixtures for kitchen and bathrooms, and all painting and carpets." (Plaintiff's "Exhibit 1", item 18). Mr. Nilsson also stated that some of the items listed in his estimate of costs had already been repaired. In adding them to his estimate, Mr. Nilsson accepted the statement of Mr. Dias that he had performed the repair work himself (Transcript P. 358, line 1-3).
Since the testimony of the Plaintiff's witness and the Defendants are at a variance, the Court must sift the differing averments and find the truth.
In a non-jury trial, it falls to the Court to determine the veracity of the proof. We begin with a review of the testimony. Determination of credibility of witnesses is viewed as the province of the Trial Judge ( Morales v. Inzerra , 98 AD3d 484, 485, 949 N.Y.S.2d 433, 436 [2nd Dept. 2012] ; Tornheim v. Blue & White Food Prod. Corp. , 88 AD3d 867, 868, 931 N.Y.S.2d 340, 341[2nd Dept. 2011] ; see Latora v. Ferreira , 102 AD3d 838 [2nd Dept. 2013] ). Judge Gazzillo eloquently opined that:
"As to the quality of any given witness, the flavor of the testimony, its quirks, the witness' bearing, mannerisms, tone and overall deportment cannot be fully captured by the cold record; the fact-finder, of course, enjoys a unique perspective for all of this, and the ability to absorb any such subtleties and nuance." ( J & K Parris Const., Inc. v. Roe Ave., Assoc., Ltd. , 47 Misc 3d 1227[A], 18 N.Y.S.3d 579 [NY Sup. Ct. 2015] ).
After reviewing all the testimony and observing the demeanor of the witnesses, the Court finds Mr. Sproston and the other witnesses produced at trial to be more credible than the witnesses called by the Defense. The exception to this is found in the testimony of Mr. Nilsson. He spoke in an entirely believable manner. The deficiency in the evidence adduced from this witness lies not in the testimony itself, but in the source of that knowledge. Mr. Nilsson admittedly based his estimate on information provided by the Defendants. Although Mr. Slevin attempted to rehabilitate his statements on re-direct, he was ultimately unsuccessful. As a result, Mr. Nilsson's testimony reminded the Court of the proverbial house built upon sand. It collapses because of the questionable evidence of the Dias' which provides its foundation.
At the conclusion of his case, Plaintiff's Counsel, Mr. Rethier moved to amend the pleadings to conform to the proof. Specifically, Counsel asked:
"to amend the pleadings for the amount demanded in the contract from $21,700.00 to $18,000.00, based on the pleadings we presented to the Court which is not a major difference, it's a $3,700.00 difference but I would ask that the relief requested in the complaint of the $6,300.00 for extras remain the same." (Transcript p. 207, line 17).
"Leave to conform a pleading to the proof pursuant to CPLR 3025 Rule (c) should be freely granted absent prejudice or surprise resulting from the delay" ( Bryant v. Broad. Music, Inc. , 60 AD3d 799, 800, 875 N.Y.S.2d 226, 227 [2nd Dept. 2009] citing Alomia v. New York City Tr. Auth. , 292 AD2d 403, 406, 738 N.Y.S.2d 695 ; see Thailer v. LaRocca , 174 AD2d 731, 571 N.Y.S.2d 569 ] ). In the case before us, defense Counsel consented to the application (Transcript p. 208, line 4). Accordingly, the application will be granted and the Court will utilize the amended complaint in its analysis of law and facts.
The Court now turns to the question of whether the parties have sustained their burden of proof on the Amended Complaint and Counterclaims.
Prior to our analysis of the law pertaining to the contract executed between the Plaintiff and the Defendant, the Court will first determine if the Plaintiffs on the counterclaim have proven their claim that Mr. Gregorius was a partner of Mr. Sproston. Since there was no evidence adduced which indicated the creation of this business entity by a formal contract, the question becomes if Mr. Gregorius became one under either principles of law or equity. To resolve this question, the Court must discuss the concept of a partnership by estoppel.
New York State Partnership Law § 27 states in relevant part that:
"When a person, by words spoken or written or by conduct, represents himself, or consents to another representing him to any one, as a partner in an existing partnership or with one or more persons not actual partners, he is liable to any such person to whom such representation has been made, who has, on the faith of such representation, given credit to the actual or apparent partnership, and if he has made such representation or consented to its being made in a public manner he is liable to such person, whether the representation has or has not been made or communicated to such person so giving credit by or with the knowledge of the apparent partner making the representation or consenting to its being made."
The facts at trial concerning Mr. Gregorious' actions involving the construction contract were discussed near the conclusion of Ms. Dias' direct testimony. In response to the question "Was it your understanding that Mr. Gregorious and Mr. Sproston were partners?" Ms. Dias responded "Yes, I was introduced to both of them...well what happened was, after the contract we had gone to the job and Billy introduced me to Tommy as his partner." (Trial transcript p.241, lines 14-18). Mr. Gregorious was also mentioned by Ms. Dias as making a request for payment for the project near the end of same (Trial Transcript p.241, line 22). On cross-examination Ms. Dias claimed that she had been told by Mr. Sproston and her brother Corey that Mr. Gregorious was a partner in the business prior to signing the renovation contract.
This evidence is patently insufficient to establish a claim for a partnership by estoppel. In order to prevail, it is incumbent for the claimant to a prove that " it relied on the Plaintiff's representations to its detriment" ( JLG Architectural Prod., LLC v. WDF, Inc., 87 AD3d 681, 682, 928 N.Y.S.2d 750, 752 [2nd Dept. 2011] citing Milano by Milano v. Freed , 64 F.3d 91 ; Hartford Acc. & Indem. Co. v. Oles , 152 Misc. 876, 274 N.Y.S. 349 ; Community Capital Bank v. Fischer & Yanowitz , 47 AD3d 667, 850 N.Y.S.2d 508 ). The Court notes that on direct examination, Ms. Dias testified that Mr. Gregorious was presented as Mr. Sproston's partner after the agreement to renovate the house was reached, so it cannot be asserted that the Defendants relied on this statement in making the initial contract. Moreover, the record is bereft of any actions or words on the part of Mr. Sproston or Mr. Gregorious at any time during the construction upon which the status of the latter gentleman as a business partner was a factor in deciding to transact business with Better Home Services. Mr. Slevin, in his post-trial brief, argues that Ms. Dias' knowledge of the prior relationship was in fact part of her decision making process. This is not supported by the record nor will the Court infer it from the conflicting testimony. Therefore, the Defendants (in their position as Counter-Claim Plaintiffs) have failed to prove this claim. It shall be dismissed. We turn now to the remaining contentions of the parties.
In his post-trial memorandum, Plaintiff and third-party Defendant's Counsel argue that breach of contract has been proven, citing Credit Agricole Corporate. v. BDC Fin. LLC , 2017 WL 375324, 2017 NY Slip Op. 30134 [Sup Ct. NY Co.2017] ; W. Park Assocs., Inc. v. Everest Nat. Ins. Co. , 113 AD3d 38, 975 N.Y.S.2d 445 [2nd Dept. 2013] ). Mr. Rethier also contends that Plaintiff should prevail under the doctrine of substantial performance pursuant to the rule in Pilgrim Homes & Garages, Inc. v. Fiore , 75 AD2d 846, 427 N.Y.S.2d 851 (2nd Dept. 1980) and Maloney Carpentry, Inc. v. Budnick , 19 AD3d 378, 795 N.Y.S.2d 911 [2nd Dept. 2005] ). The Plaintiff also asserts that the Defendants are barred from recovery on the basis of their own actions in ordering Plaintiff to cease work and thus, frustrated the purpose of the contract ( Ross v. Friedman , 269 AD2d 584, 707 N.Y.S.2d 114 [2nd Dept.2000] ; Williams v. Roper , 269 AD2d 125, 703 N.Y.S.2d 77 [1st Dept. 2000] ; PPF Safeguard, LLC v. BCR Safeguard Holding, LLC , 85 AD3d 506, 924 N.Y.S.2d 391 [1st Dept.2011] ).
Defense Counsel, Mr. Slevin, contends that the proof and applicable case law supports the Defendants in their counterclaims alleging Negligence, Breach of Contract, Breach of Implied Covenant, Exaggeration of a Mechanic's Lien ( Lien Law § 39 ) and Deceptive Acts (G.O.L. § 349).
It is beyond cavil that in order for the Plaintiff to prove a cause of action for Breach of Contract, the following elements must be established: (1) the formation of a contract between the parties; (2) performance on the contract by the plaintiff; (3) defendants' failure to make payment as agreed upon in the Contract of the agreed upon price; and, (4) resulting damages to the plaintiff ( Dee v. Rakower , 112 AD3d 204,208-209, 976 N.Y.S.2d 470 [2d Dept., 2013] citing Elisa Dreier Reporting Corp. v. Global NAPs Networks, Inc., 84 AD3d 122, 127 [2011] ; Brualdi v. IBERIA, Lineas Aereas de España, S.A., 79 AD3d 959, 960 [2010] ; JP Morgan Chase v. J.H. Elec. of NY, Inc., 69 AD3d 802, 803 [2010] ; Furia v. Furia , 116AD2d 694, 695 [1986]; see , PJI Civil, Div.4:1, at 2] ). In establishing a counterclaim for Breach of Contract, it is a truism that a Defendant must meet the same burden.
The Plaintiff has proven, by a fair preponderance of the credible evidence, that the Defendants are the authors of the events which caused delay and subsequent extra costs. The delay in obtaining building permits was followed by work changes at the Dias' request. This brings to mind the rule found in Kooleraire Serv. & Installation Corp. v. Bd. of Ed. of City of New York , 28 NY2d 101, 320 N.Y.S.2d 46 (1971) wherein the Court held: "that a party to a contract cannot rely on the failure of another to perform a condition precedent where he has frustrated or prevented the occurrence of the condition." In Stern v. Gepo Realty Corp. (289 NY 274, 277 ) it was observed "...one may not take advantage of a condition precedent, the performance of which he himself has rendered impossible." ( Id. at 106-107 ); citing Sibbald v. Bethlehem Iron Co. [83 NY 378 ]; Vandegrift v. Cowles Eng. Co. [161 NY 435 ] ).
In the more recent case of Frank Brunckhorst Co., LLC v. JPKJ Realty, LLC , 129 AD3d 1019, 1020, 12 N.Y.S.3d 241, 243 (2nd Dept. 2015), the Court discussed the doctrine of prevention which holds that " when a party to a contract causes the failure of the performance of the obligation due, it cannot in any way take advantage of that failure." ( Id. at 1020 ); citing inter alia 13 Williston on Contracts § 39:3 [4th ed., May 2015] ).
The Defendants rely on the language in the contract which requires all additional work to be memorialized. This position is untenable. The record is replete with eighteen instances where tasks dehors the written agreement were orally negotiated and approved. Mr. Sproston's testimony demonstrated that over the course of months extensive tasks were undertaken and completed with the Defendants knowledge. The extra work occurred often in the presence of Mr. and Ms. Dias.
We also find that the Plaintiff was in the process of rendering substantial performance by supplying services and materials when the Defendants unilaterally stopped the project. Defendants refusal to pay additional funds to the Plaintiff also constitutes a breach of their contract because the Change Orders were clearly assented to by the Defendants and placed them on notice of the additional costs for the project (see , PJI Civil, Div. 4:7, at 6; S. Kornblum Metals Co. v. Intsel Corp. , 38 NY2d 376, 380 [1976] ; Miller v. Schloss , 218 NY 400,407-08 [1916] ).
Although the Defendants submitted some evidence that the work was left unfinished, the Plaintiff was never afforded the opportunity to finish his work. Stated plainly, the Defendants could not have it both ways. They could have continued with the project, as agreed upon with the Plaintiff and paid additional sums for completion. Instead, they chose to terminate the relationship and obtain a negotiated credit for the remaining work to be completed by Mr. and Ms. Dias. The covenant of good faith and fair dealing, implicit in every contract, was breached by the Defendants discharging the Plaintiff and preventing him from completing the project; (see 511 W. 232nd Owners Corp. v. Jennifer Realty Co. , 98 NY2d 144, 153, 773 N.E.2d 496, 500 [2002] ). In contrast with the evidence which sustains the Plaintiff's claim, Defendants have failed to sustain their burden of proving a reciprocal breach on the part of the Plaintiff.
The Court will address Defendants' counterclaims arising from the Lien Law and the General Business Law. NY 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 validity of the lien is an issue, if the court shall find that a lienor has wilfully exaggerated the amount for which he claims a lien as stated in his notice of lien, his lien shall be declared to be void and no recovery shall be had thereon."
NY Gen. Bus. Law § 349 provides: "(a) Deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful."
The above statutes are separate and case law interpreting them has an interesting divergence. Regarding Lien Law § 39, a plain reading of the statute indicates that "willful" behavior requires proof of an intentional, deliberate act ( Garrison v. All Phase Structure Corp. , 33 AD3d 661, 662, 821 N.Y.S.2d 898, 899 [2nd Dept. 2006] ; citing Fidelity NY v. Kensington-Johnson Corp. , 234 AD2d 263, 651 N.Y.S.2d 86 [2nd Dept.1996] ; Perma Pave Contr. Corp. v. Paerdegat Boat & Racquet Club , 156 AD2d 550, 552, 549 N.Y.S.2d 57 [2nd Dept.1989] ; Minelli Constr. Co, v. Arben Corp. , 1 AD3d 580, 581, 768 N.Y.S.2d 227 [2nd Dept.2003] ). It clearly does not contemplate "an exaggerated amount due to honest mistake" ( Goodman v. Del-Sa-Co Foods, Inc. , 15 NY2d 191, 257 N.Y.S.2d 142 [1965] ).
Applying this standard it is apparent that the credible evidence does not support the view that Mr. Sproston willfully exaggerated the amount of the lien on the Dias' home. Therefore, this cause of action will be dismissed.
In making a claim under Gen. Bus. Law § 349 a party must prove:
"(1) that the defendant's acts were consumer oriented; (2) that the acts or practices are deceptive or misleading in a material way; and (3) that the plaintiff has been injured as a result." ( Goldemberg v. Johnson & Johnson Consumer Companies, Inc. , 8 F.Supp.3d 467 [SDNY 2014] ).
Unlike Lien Law § 39, there is no requirement for a party to show an intent to defraud under General Business Law § 349 ( Small v. Lorillard Tobacco Co. , 94 NY2d 43, 55, 698 N.Y.S.2d 615 [1999] ).
There is, however, a limitation in the latter statute. The Court in Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A. , 85 NY2d 20, 24, 647 N.E.2d 741, 744 (1995) stated that although "...§ 349 is directed at wrongs against the consuming public [p]rivate contract disputes, unique to the parties, for example, would not fall within the ambit of the statute" ( Id. 24-25 ).
In the case of Wilson v. Nw. Mut. Ins. Co. , 625 F.3d 54, 64 (2d Cir.2010) the Court opined that "The consumer-oriented requirement is met only if the challenged conduct "potentially affect[s] similarly-situated consumers." ( Id. at 64 quoting Oswego supra at 26-27).
The Court in Teller v. Bill Hayes, Ltd., 213 AD2d 141, 630 N.Y.S.2d 769 (2nd Dept. 1995) was presented with a similar fact pattern to the case at hand. The Court held:
"That General Business Law § 349 was primarily intended to apply to more modest transactions ‘is evidenced by the remedies it provides,’ § 349 (h) provides parties with the opportunity to receive the greater of actual damages or $50.00’ " ( Genesco Entertainment v. Koch , 593 F.Supp. 743 at 751-752 ). Even treble damages available under the statute for willful violations are capped at one thousand dollars ( General Business Law § 349 [h] ). Clearly, the instant home remodeling contract for hundreds of thousands of dollars is unlike the causes previously decided pursuant to General Business Law § 349." ( Id. at 146-147 ).
Applying the rule in Teller , which this Court finds is controlling authority, it is apparent that the transaction between Plaintiff and the Defendants is not subject to the provisions of General Business Law § 349. Assuming, arguendo , that it was applicable, the Court would still be obliged to dismiss this claim because the Defendants have failed to prove any misleading or deceptive representations on the part of the Plaintiff.
The Defendants counter-claim alleging negligence is similarly chimerical. It relates that the Plaintiff performed his tasks with "negligence and carelessness" and that his work was "shoddy and improper." Under the circumstances presented "Such a cause of action sounds in breach of contract, not negligence" ( Mack-Cali Realty, L.P. v. Everfoam Insulation Sys., Inc. , 129 AD3d 676, 679, 12 N.Y.S.3d 106, 109 [NY 2nd Dept. 2015] citing Corrado v. East End Pool & Hot Tub, Inc. , 69 AD3d 900, 900, 892 N.Y.S.2d 797 ; Staten Is. NY CVS, Inc. v. Gordon Retail Dev., LLC , 57 AD3d 760, 763, 870 N.Y.S.2d 74 ; Panasuk v. Viola Park Realty, LLC , 41 AD3d 804, 805, 839 N.Y.S.2d 520 ] ). Additionally, the evidence at trial demonstrated that the Plaintiff discharged his obligations under the contracts in good faith and in a proficient manner.
As noted above, the Court found the Plaintiff's evidence (both testimonial and documentary) to be more credible than that tendered by the Defense. This moves the Court to find as follows:
The Plaintiff has proven, by a fair preponderance of the credible evidence, the existence of the aforementioned contract for construction at 11 Curtis Drive, NY. Indeed, the existence of the contract has never been in doubt. The Court also finds that the Plaintiff was a properly licensed home improvement contractor, thus allowing him to maintain this action ( Enko Const. Corp. v. Aronshtein , 89 AD3d 676, 678, 932 N.Y.S.2d 501, 504 [2nd Dept. 2011] ). Plaintiff has also proven, by the aforementioned standard of proof, that the Plaintiff substantially performed his obligations under the contract which was breached by the Defendants Sarah and John Dias. The Defendants have failed to prove their counterclaims, both against Plaintiff and the additional counterclaim Defendant Thomas Gregorius.
The breach of contract having been proven by the Plaintiff to the Court's satisfaction, it now serves to move on to the issue of damages. The Court in New Era Homes Corp. v. Forster , 299 NY 303, 299 NY 303 [1949] stated that the general rule for damages should be "Contract price, less payments made and the cost of completion." This has long been held to apply in " an action for breach of a fixed-price construction contract" ( Inspectronic Corp. v. Gottlieb Skanska, Inc. , 135 AD3d 707, 709, 23 N.Y.S.3d 309, 311 [2nd Dept. 2016] ). The Court sees no reason to depart from the rule in this case. Accordingly, the outstanding sum described in Mr. Sproston's testimony as being owed under the original contract ($18,000.00) as well as the extra work agreed to by the parties ($6,300.00) for a total of $24,300.00 shall be the measure of damages, as well as pre-verdict statutory interest as of the date of the breach, October 31st, 2012 ( CPLR § 5001[b] ). Plaintiff shall also be awarded statutory costs and disbursements ( CPLR §§ 8101, 8301 ).
Settle judgment.
The foregoing memorandum decision is also the Order of the Court.