J&K Parris Constr., Inc.v.Roe Ave., Assoc., Ltd.

Supreme Court, Suffolk CountyMay 19, 2015
22658/2011 (N.Y. Sup. Ct. 2015)
22658/20112015 N.Y. Slip Op. 50864



J & K Parris Construction, Inc., Plaintiff(s), v. Roe Avenue, Assoc., Ltd., Suffolk County Treasurer, et.al., Defendant(s).

For Plaintiff Alicia M. Menechino LaVelle & Menechino, LLP 57 E. Main Street Patchogue, N.Y. 11772 For Defendant Anthony T. Conforti Attorney at Law 250 North Sea Road Southampton, N.Y. 11968

For Plaintiff

Alicia M. Menechino

LaVelle & Menechino, LLP

57 E. Main Street

Patchogue, N.Y. 11772

For Defendant

Anthony T. Conforti

Attorney at Law

250 North Sea Road

Southampton, N.Y. 11968

Ralph T. Gazzillo, J.

The non-jury trial of this matter was conducted before the undersigned on March 16th and 23rd, 2015. Prior to the testimony, a number of items were pre-marked as either exhibits or directly admitted into evidence. In addition to those items, the parties relied upon the testimony of seven (7) witnesses. The plaintiff called Jon Parris, Veronica Botts-Shaber and John Hasemenn; on rebuttal, it re-called Parris. The defendant called Nancy Raisman, James Vincent DeLucca, JoAnn Gerena, and Lorraine Crowder-Hughes.

At the conclusion of the proceedings and in lieu of summations, each side was invited to submit written factual and legal arguments as well as any requests for findings of fact pursuant to CPLR §4213 by April 30th, 2015. Due to difficulties with delivery, however, both sides' submissions were not received until May 13th, 2015. Those memoranda having been reviewed, the Court's decision is as follows:

This matter began more or less as a joint venture whereby the plaintiff would build a house on the defendant's vacant land, they would sell it to a third party, and split the profits. Before final completion, the construction was halted. The house remains unfinished and the contemplated sale never achieved; in fact, the project's only on-going by-product is this litigation. As to the causes of actions, claims and counterclaims, the plaintiff J & K Parris Construction, Inc. began this action with three (3) causes of action. In essence, by the first cause of action, it requested a declaratory judgment that the underlying contract was indefinite and therefore unenforceable. By the order of this Court (Baisley, J.) dated October 28, 2014, the

writing was deemed void and unenforceable, and the requested relief granted. The second cause of action sought an equitable lien for payment of expenses of the property and the third requested relief for the defendant's alleged unjust enrichment. In response, the defendant interposed affirmative defenses of laches and unclean hands. Additionally, it raised following counterclaims: that the plaintiff 1) failed to pay for insurance, taxes, permits; 2) defaulted on loan of $4,000.00 (this claim was subsequently withdrawn); 3) failed to maintain the premises causing damage; 4) rendered the property unmarketable by a filing of a notice of pendency. To those claims, the plaintiff offered affirmative defenses that the claims failed to state a cause of action, estoppel, unclean hands, and anticipatory breach.

In addition, and consistent with that sketch of the matter's history, there are a number of background facts and contentions which are not in serious dispute and were stipulated and agreed to by the parties at the trial's commencement. As noted within the record, the following is not contested:

J & K Parris Construction, Inc., and Roe Avenue Associates, Limited, entered into an agreement dated September 27, 2005, wherein and whereby J & K Parris Construction agreed to build a home on the property located at 5 Harborside Court, East Patchogue, also known as Six Charles Estate lot number 20, County of Suffolk, State of New York, hereinafter "the premises." The September 27, 2005 agreement has been declared void and unenforceable by the order of this Court (Baisley, J.) dated October 28, 2014. Counterclaim number two, regarding an alleged $4,000.00 loan has been withdrawn by the defendant Roe Avenue Limited. In furtherance of the September 27, 2005 agreement, plaintiff entered upon the premises and partially constructed a residential structure thereupon. The partially completed structure still exists at the premises


What immediately follows is an unassessed and condensed version of the testimony of the various witnesses regarding the relevant and germane facts of this matter as was portrayed, purported and alleged by each.

Jon Parris testified that he is an officer of the plaintiff corporation, specifically, its vice-president. He stated that the structure had not been completed although it had passed inspections of its foundation, framing, plumbing, strapping and preliminary electrical service. He set the value of the thus-far completed work at $238,050.60. The last time he saw the property was a year ago but saw its outside two days prior to his testimony. As yet unfinished is some additional electrical work as the meter was removed and some wires were vandalized. Additionally the "HVAC" needs work, the decks need hand rails, and the garage doors and gutters are not yet complete, but the rough plumbing and some basic electrical work has been

Plaintiff's exhibit 1- admitted without objection - also contains water and electric bills totaling $982.59 as well as insurance bills for which plaintiff's counsel demands an additional $20,763.60.

finished. Also, the house has been sided but kitchen cabinetry and flooring has to be completed. He estimated that it would cost from $110,000.00 to $120,000.00 to finish the project.

He also stated that he doesn't own the property and never received any money from defendant towards the house. While some three-quarters of the property is wetlands, approximately 28% is suitable for construction and building. At the project's inception, it was anticipated that the completed structure would contain four bedrooms and three baths, a dining room, den, living room, kitchen, an attached two-car garage, and have cental vacuuming. There are no easements on the property, its frontage is 103', and there are no open violations on the structure.

He added that he has been in the building business since 1980 and has built 20 or 30 homes since 1987. Of those, four or five were on property he owned and the last one he completed in Patchogue was sold in 1989 or 1990. His profit margin is typically10% of the value of property. The parcel in question has had three offers and the listed value was $300,000.00. Prior to the construction, the property had a Board of Health permit for septic system. As to the real estate taxes, he hadn't paid them.

On cross-examination it was revealed that the now-precluded contract was signed in 2005 at Myron Raisman's office and paragraphs "7" and "8" were stricken . Both were removed at his request—the former because it contained control dates only a few days after the signing the contract, and the latter because there was "no way" he could complete the house by the contractual deadline. As he noted, pursuant to paragraph "11", he was responsible for maintaining insurance but he didn't add Roe as an additional insured until well after the litigation began. Defendant's "A" demonstrated that the foundation had been approved by the Brookhaven Town Building Inspector. "B" noted that the strapping was deemed deficient in June, 2007, and "C" noted there were deficiencies in the stairwell. As a result of the latter two reports, the structure did not pass the framing inspections. He also noted that certain wires had been stripped. He made an insurance claim and recovered $5,800.00. As to the flooring, he had not seen it in a while so he was unprepared to say whether it had become warped. As to the land, part was wetland, but it had never been inspected by DEC. Construction began in 2007 and the first building permit was issued that February. The last time work was performed was in the Fall of 2008—they had stopped working 20 months from start but hadn't started until 15 months after the contract signing. He ended his cross-examination by estimating that the house was two-thirds (2/3) complete.

Paragraph "7" set the dates of completion of improvements/bond release; "8" was predicated on the house being ready for sale within a year.

JoAnn Gerena was called next but, due to procedural issues, her testimony was delayed until later in the trial.

Thereafter, Nancy Raisman was called out-of-turn by the defense. She reviewed

defendant's "D," the Brookhaven Town building permit obtained by Larry Busemi who had been engaged by Roe Avenue. This cost $785.00, plus $650.00 for Busemi to expedite the permit; this was also paid by Roe. Exhibit "E" is a violation complaining of uncut grass; this resulted in a fine of $1,015.61, paid by the defendant. "F" was identified as a summary of insurance for premises; Roe maintained the policies but prior to that coverage, no one else had provided them with any information as to insurance. "G-1," a statement from the defendant's bank account, reveals a payment for a registration fee of $250.00. "G 2" is a bank statement listing a $250.00 payment to the town for a vacant building registration. It was alleged she paid the 2005 to 2015 real estate taxes, stipulated at $21,285.52. Roe also engaged landscapers and the witness reviewed paragraph 11 of exhibit "1" which states the "purchaser" is to be responsible for the property. She continued that after the plaintiff supplied the necessary proof Roe didn't pay any more insurance. She had paid $1,989.69 in landscaping expenses, a total of $500.00 to the town for registering an abandoned building, $12,456.00 in insurance, $1,015.61 for a violation (uncut grass), $2984.00 for building permits, and counsel fees of $15,675.00.

On cross-examination, she indicated that she had never requested proof of insurance from the plaintiff as she was unable to locate its principal. As to landscaping, she didn't contact the plaintiff prior to litigation. She also stated that she was unaware of the prior unenforceable agreement but that it was her contention that the contract said the "purchaser" was responsible to pay taxes. As to landscaping bill, she alleged that as the plaintiff had created the nuisance—therefore it was responsible.

Veronica Botts-Shaber testified that she had attended meetings with Nancy and Myron Raisman as well as the plaintiff. There had been a discussion of the agreement/contract between the Myron Raisman and the plaintiff. During cross-examination it was contended that Nancy did not participate in the first meeting but thereafter she attended and participated in at least three (3) of the multiple meetings which followed. Also at those meetings were Myron Raisman, plaintiff John Powers, and attorney William LaValle.

John Hasemenn testified that he was a volunteer firefighter with Parris and had known him since their childhood. Along with other firefighters, had installed the structure's roof. Subsequently, he had heard from a friend that the property was for sale. He added that it looks similar to other houses on the block and he would pay $300,000.00 for it. He was not subject to any cross-examination and after his testimony the plaintiff rested.

The defendant's case began with the testimony of James Vincent DeLucca. A registered

architect, he also teaches construction/architecture at Farmingdale College and is in charge of that department. He had been building inspector for Riverhead and several villages and has ten (10) years of such experience. He has personally inspected 5 Harborside Court twice. He also reviewed Brookhaven Town's Building Department records. In the course of that exercise he saw the results of three (3) inspections: one for the foundation and two framing inspections. The deficiencies shown in one framing inspection (deft's B) were mostly regarding the strapping; the other framing inspection (deft's C) demonstrated that on November 27, 2007 the "rough framing" was acceptable but with some deficiencies.

After indicating his educational degrees and that he typically reviews bids on projects and teaches estimates at the college and his degrees, he was qualified as expert. He indicated that he had measured the building twice; the first floor area, excluding the garage, was 1891 square feet, the second floor was1637 square feet; the total area was therefore 3,528 square feet and the garage another 530 square feet. Before a Certificate of Occupancy could be obtained the following were necessary: repairs, leaders and gutters, painting, railings, framing repairs, garage door rough opening had to be corrected; returns needed to be adjusted, the rear decks needed updating or renewal, and stairs had to be installed. Inside the structure, electrical wiring had been removed and high hats had to be wired. The low voltage wiring was sufficient but the insulation needed work. Also needed to be addressed was the HVAC system, the stairwell, gypsum boards. Additionally, fireplaces had to be installed as well as a cap for the fireplace as rain water runs in which may have injured inside plywood and plumbing. Tiles also needed to be installed, floors finished, as well as the installation of cabinets, a water heater, window screens, and a central vacuum. Lastly, the home requires plywood shutters to be available, labeled and stored within the basement. He estimated the percentage of completion at 44.2% and the completion cost, based upon a viewing of houses in area, at $242,000.00—a figure which included trading off some of the work already done. His estimate included a "1.21" geographical adjustment for the local cost of materials.

On cross-examination he indicated his estimates for materials/appliances were derived

from average costs—that is, not based on the top-of-the-line prices nor the cheapest. As to his "Expert Report" (Pl's 9), the value of construction costs thus far were $228,460.00 using current prices but in 2007 they would have been less. He calculated that there had been a 1 to 1.5 per cent increase per year; at the relevant time it would have been about 15% (or $34,269.00) lower, or $194,191.00. He also indicated that the home's septic was installed as well as the dry well system. Lastly, he stated that he had been paid "a little over $2,000.00" for his services.

The plaintiff re-called JoAnn Gerena who testified she has been a real estate agent since 1990; although a licensed agent, she is not a broker. She works for Belzak & Bodkin Realty and has over 25 years experience in appraisals. As to the property of this matter, she didn't go inside the structure as she hadn't been allowed. She sold a large, nearby and comparable property

for $530,000.00—a completed "diamond, mint" structure. As to this matter's property, she placed the property's value at $150,000.00 with the structure as is. After reviewing a number of "comps" she placed the value of property at $150,000.00, but if it had a structure at $300,000.00.

On cross-examination she re-stated that she had never gained access to the house, but had never requested it. Also, she restated that the value of the land today is $150,000.00; with a structure it would be $300,000.00 but she had been unable to find any "comps" with a partially completed structure.

Upon completion of that testimony, the plaintiff rested.

The defendant's case began with Lorraine Crowder-Hughes. She has been a Real Estate appraiser for 35 years, and a partner in her firm for 10 years. She has taken numerous courses, and is state-certified as an appraiser. She has testified as a qualified expert in Nassau and Suffolk

Supreme Courts between 10 and 20 times. She prepared exhibit "I," a vacant land appraisal but since there were few nearby comps she had to expand her search. "I" merely contains sales, not listings and she verified its information by other searches, and had contacted many of the parties and adjusted prices for variables and differences, including wetlands, views, waterfront, dockage. She estimated the final value for subject property at $300,000.00 if it were vacant. She also prepared an appraisal, "J," based on property with the structure completed. With adjustments to "comps" (which values she verified with records) she estimated the value of the structure if completed at $575,000.00. She also indicated that every "comp" was smaller than the subject property and therefore it would be more expensive to run in addition to incurring higher property taxes. She also added that therefore it would be harder to sell than the "comps" in "J." Her cross-examination was not remarkable.

Excepts from the examination before trial of Jon Parris were read into the record, the essence of which was that he didn't remember the plans, had no direct recollection of giving Raisman or anyone else plans, the listing price for house - pre-construction - was $899,000.00 but it was later lowered to $799,000.00. He had total control of dealings with a real estate agent, and prior to litigation, the plaintiff made no demands upon the defendant Roe Ave.

On rebuttal, the plaintiff recalled Mr. Parris who essentially explained any difference between the structure's square footage and the plans explained. Additionally, he estimated the cost to complete the structure, including labor, to be $137,000.00. LAW

First and foremost, having observed the witnesses, "the very whites of their eyes," on direct as well as cross-examination, the so-called "greatest engine for ascertaining the truth," Wigmore on Evidence, §1367, the Court is satisfied that the exercise has been fruitful and more than sufficient to determine the credible information as well as to simultaneously filter that which is less than reliable. Secondarily, it should go without saying that in evaluating each witness' contributions to the resolution of the controversies in this matter—as well as all such determinations—it is hornbook law that the quality of the witnesses, not the quantity, is determinative. See e.g. Fisch on New York Evidence, 2d ed., §1090. 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 nuances. Indeed, appellate courts' respect and recognition of that perspective as well as its advantages is historic and well-settled in the law. See e.g. N. Westchester Prof. Park Assn. v Town of Bedford, 60 NY2d 492 (1983); Latora v Ferreira, 102 AD3d 838 (2d Dept 2013); Zero Real Estate Servs., Inc. v Parr Gen. Contr. Co., Inc., 102 AD3d 770 (2d Dept 2013); Hom v Hom, 101 AD3d 816 (2d Dept 2012); Marinoff v Natty Realty Corp., 34 AD3d 765 (2d Dept 2006).

Also worthy of examination is any witness' interest in the litigation. See e.g., 1 NY PJI3d 1:91 et seq., at p.172. The length of time taken by either side's case or any witness' testimony is, however, clearly non-conclusive. What can, however, be devastating to a witness' presentation

is the fact-finder's determination that a witness testified falsely about a material fact; under such circumstances and pursuant to the maxim falsus in uno, falsus in omnibus, the law has long permitted—but not required—the finder of fact to disregard those portions or even all of the testimony. See Deering v Metcalf, 74 NY 501 (1878); see also, 1 NY PJI3d 1:22. It also bears nothing that the traditional rule had been that a prior inconsistent statement admitted to impeach a witness is admitted to impeach a witness and is not admitted for its truth. Stated otherwise it is admitted for a limited purpose: as evidence of the witness' lack of veracity, not as evidence in chief. In civil cases and as regards a signed or sworn prior statement, however, there has been authority to also admit such statements for the truth contained therein. Jerome Prince, Richardson on Evidence § 6-412 (Farrell 11th ed 1995).

Additionally, it should be underscored and acknowledged that during the course of gauging a witness' credibility as well as conducting the fact-finding analysis, the undersigned's continuous tasks also included, of course, segregating the competent evidence from that which was not, an undertaking for which the law presupposes a court's unassisted ability. See e.g., People v Bass, 110 AD3d 1356 (4th Dept 2014); Matter of Onuoha v Onuoha, 28 AD3d 563 (2d Dept 2006); People v Brown, 24 NY2d 168 (1969).

Those tasks and duties aside, there is also the purpose and goal of the trial, viz., to try or test the case. It is hornbook law that the yardstick for measuring causes of actions such as the matter at bar is the same whether the trial is by bench or jury: The burden of proof rests with the plaintiff who must establish the truth and validity of each claim by a fair preponderance of the credible evidence. Stated otherwise, in order for a plaintiff to prevail on any individual claim, the evidence that supports that claim must appeal to the fact-finder as more nearly representing what took place than the evidence opposed to it; if the evidence does not, or if that evidence weighs so evenly that the fact-finder is unable to indicate that there is a preponderance on either side, then the question is decided in favor of the defendant. Only when the evidence favoring a plaintiff's claim outweighs the evidence opposed to it may that plaintiff prevail. See e.g. 1 NY PJI3d 1:23. The same rules apply, obviously, to a defendant's counter-claims.

As to any purported expert's testimony, there can be no argument that its admissibility is, in the first instance, purely a question of law for the Court while its weight or persuasiveness is left to the fact-finder—the judge or jury as the case may be. See, e.g., Matter of Sylvestri, 44 NY2d 260 (1978); Jerome Prince, Richardson on Evidence, § 4-368 (Farrell 11th ed 1995). The opinion of an expert is not, of course, sacrosanct and the fact-finder may reject it, even if it is uncontradicted. David Home Bldrs., Inc., v Misiak, 91 AD3d 1362 (4th Dept 2012). Indeed, it

has long been recognized that no fact-finder is required to accept a expert's opinion, whether there is or is not opposing testimony, or merely because, after careful consideration of all the evidence in the case, it disagrees with the opinion. Curry v Hudson Valley Hosp. Ctr., 104 AD3d 898 (2d Dept 2013); see, generally, Matter of Sylvestri, supra. An unfavorable determination of the expert's credibility may, of course, undermine any acceptance of the opinion. See, e.g., Curry v Hudson Valley Hosp. Ctr., supra. Moreover, it has been specifically held that "[d]eterminations regarding the credibility of expert witnesses are entitled to great weight on appeal, as the [fact-finder] had the opportunity to observe and hear the experts." Curry v Hudson

Valley Hosp. Ctr., supra, 104 AD3d at 901 (citations omitted). Any rejection of an expert's opinion may not, however, be arbitrary and the rejection must be supported by other evidence or cross-examination. Williams v City of New York, 71 AD3d 1135 (2d Dept 2010). Additionally, an expert's opinion which relies upon multiple assumptions may also be found insufficient and therefore rejected. Kenford Co. v County of Erie, 67 NY2d 257 (1986).

An analysis of the law more specific to the matter at bar perhaps best begins with "joint venture." It is a common sense concept and is perhaps easily recognizable both in law and in fact.

"The essential elements of a joint venture are an agreement manifesting the intent of the parties to be associated as joint venturers, a contribution by the coventurers to the joint undertaking i.e., a contribution of property, financial resources, effort, skill or knowledge, some degree of joint proprietorship and control over the enterprise; and a provision for the sharing of profits and losses.

The ultimate inquiry is whether the parties have so joined their property, interests, skills and risks that for the purpose of the particular adventure their respective contributions have become one and the commingled property and interests of the parties have thereby been made subject to each of the associates on the trust and inducement that each would act for the joint benefit.

Hamlet at Willow Cr. Dev. Co., LLC v Northeast land Dev. Corp., 64 AD3rd 85 at 103 ((2d Dept 2009)(citations omitted).

With respect to the plaintiff's causes of action, the first of the remaining two seeks an equitable lien. As was long ago summarized,

The theory of equitable liens has its foundation in contracts express or implied which either deal with or in some manner relate to specific property, such as a tract of land, particular chattels or security, a certain fund and the like. The agreement must deal with some particular property either by identifying it or by so describing it that it can be identified and must indicate with sufficient clearness an intent that the property so described or rendered capable of identification is to be held, given, or transferred as security for the obligation. The implied contract is a term used to describe those situations and conditions which make it equitable and just in applying the equity powers of the court to establish and declare a lien where otherwise there might be no relief.

James v Alderton Dock Yards, Ltd., 256 NY 298 at 303 (1931) (citations omitted).

Stated otherwise, an equitable lien requires 1) express or implied contract, 2) which concerns specific property and, 3) there is a clear intent by the parties that the property be either held, given or transferred as the security for an obligation. Datlof v Turetsky, 111 AD2 364 (2d Dept 1985). This does not, however, embrace any agreement to pay a debt from a designated fund. Id. Additionally, and as was noted within a case cited within the plaintiff's post-trial memorandum, where there is an adequate remedy at law, viz, money damages for unjust enrichment, it is appropriate to dismiss an equitable lien claim—as well as any notice of pendency. Bennett v John, 141 AD2d 711 (2d Dept 1989).

The Court of Appeals has been consistent in its instructions and teachings when addressing a cause of action based upon unjust enrichment. Indeed, this was recently underscored in Malone & Co., Inc. v Rieder, 19 NY3d 511 (2012):

As we have stated on several occasions, " [t]he theory of unjust enrichment lies -contract claim' " and contemplates "an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties" (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009], quoting Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 572 [2005]). An unjust enrichment claim is rooted in "the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another" (Miller v Schloss, 218 NY 400, 407 [1916]). Thus, in order to adequately plead such a claim, the plaintiff must allege "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" (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182 [2011] [brackets and internal quotation marks omitted]). 19 NY3d 516.

That Court has also underscored that of those three elements, the prime focus should be on the final requirement, stating that " [t]he essential inquiry in any action for unjust enrichment . . . is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered.' " Mandarin Trading Ltd. v Wildenstein, supra, 16 NY3d at 182 (citation omitted). Prior to that, it has also noted that "[s]uch a claim is undoubtedly equitable and depends upon broad considerations of equity and justice (50 NY Jur., Restitution, § 7). Generally, courts will look to see if a benefit has been conferred on the defendant under a mistake of fact or law, if the benefit still remains with the defendant, if there has been otherwise a change of position by the defendant, and whether the defendant's conduct was tortuous or fraudulent. (Restatement Restitution §§ 1, 142, esp. Comment b,; id, §155, including comment b.)." 16 NY3d at 182. Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415 (1972).

Intermediate appellate panels have further refined and reaffirmed the law applicable when testing and measuring unjust enrichment claims. For instance, it has been stated that "[a] cause of action based on unjust enrichment is closely related to a cause of action to impose a constructive trust, since " [t]he ultimate purpose of a constructive trust is to prevent unjust enrichment.' " Dee v. Rakower, 112 AD3d 204, at 213 (2d Dept 2013) (citation omitted). It has also been stated that " [t]he essence of unjust enrichment is that one party has received money or a benefit at the expense of another.' " Wolf v Nat'l Council of Young Israel, 264 AD2d 416 at 417 (2d Dept 1999)(citations omitted). There is no requirement, however, the one enriched had performed any wrongful act. Cruz v McAneney, 31 AD3d 54 (2d Dept 2006).

Lastly, and perhaps especially applicable to the facts at bar, while the existence of an enforceable contract generally precludes pursuit of a quasi-contractual remedy, the existence of a bona fide dispute as to a contract does not act as such a bar. Nakamura v Fujii, 253 AD2d 387 (1st Dept 1998).

Finally, where an award of money damages is sought in a civil action, one of the basic premises in gauging the viability of such an action is the maxim of damnum sine injuria est injuria sine damnum: liability without damages is the same as damages without liability. In the absence of proof of both liability by the defendant as well as damages by the plaintiff, the plaintiff will typically not receive any compensation. Assuming the issues of liability and damage are found in the plaintiff's favor, there is a further caveat, viz, the proof must contain evidence to support a valid calculation of any monetary award for the damages. Stated

otherwise, an award of money damages should not be measured or determined by a whim or caprice; there must be a rational, well-established basis for any such award. Obviously, this rule is not only logical and just, it also reflects the established and historic admonition to avoid awarding damages on whim and/or naked speculation as opposed to some proven, satisfactory method which has some acceptable measure of precision. See e.g. Goldberg v Besdine, 76 AD 451 (2d Dept 1902); see also Kenford Co. v County of Erie, 67 NY2d 257 (1986) ; R. B. v M.S. , ___ Misc 3d ___, 303455/10, NYLJ 1202642854926 (Sup NY 2014). In addressing the issue of a claim for damaged personal property the unanimous Goldberg v Besdine panel wrote,

"There is proof as to the first cost of the articles which the plaintiff claims were injured or destroyed, but they were all in use, and had been in use for some time, and no proof was made of their condition or value at the time of the fire. Under these circumstances, the estimate of the value made by the court was necessarily conjectural, and is not based upon that reasonably precise proof which it was within the power of the plaintiff to furnish and which the law requires." Goldberg v Besdine, supra at 452-53.

However, and although the rule that requires "that damages be reasonably certain, [it] does not require absolute certainty." Ashland Mgt. v Janien, 82 NY2d 395 at 404 (1993) (as long as based upon reliable factors but without any undue speculation, damages from loss of future profits are often an approximation). Cf. Vasquez v Gesher Realty Corp. & B & B Mgt., ___Misc 3d ___, 2014 NY Slip Op 24036 (App Term 1st Dept 2014) (in the absence of articulated basis for estimated lost profits, claimed amount for damages indicated as "more or less" insufficient).

Under appropriate circumstances where the proof does not provide a sufficient degree of preciseness but there is some support in the record and it is not legally erroneous, the fact-finder may rely upon "reasonable conjectures and probable estimates and to make the best approximation possible through the exercise of good judgement and common sense in arriving at [an] amount." Matter of Rothko, 43 NY2d 305 at 323 (1977). "The rule of certainty as applied to the recovery of damages does not require absolute certainty or exactness, but only that the loss or damage be capable of ascertainment with reasonable certainty." 36 NY Jur Damages, § 15. Recognition of that logic and the rule which flows from it is long and well established. See, e.g., Gombert v New York Cent. & Hudson Riv R.R. Co., 195 NY 273 (1909). DETERMINATIONS

As to the witnesses, it appears that they all were somewhat equally credible. Moreover, there are no indications that any intentionally wandered from their oath. Indeed, while between and among the various versions of some of the events there may be disparities, none are pivotal or of major significance and the disparate accounts are to some degree harmonious. This observation should not, however, be viewed as indicating that the various witnesses' accounts were "on all fours" with each other. To the contrary, it is meant to indicate that by focusing on and isolating specific factual events somewhere addressed within each witness' testimony, the accounts are sufficiently reconcilable to provide the Court with a sufficiently clear understanding of the circumstances. It should also be noted that this observation purely addresses the witnesses' descriptions of facts but does not embrace their stated opinions; as is quite obvious from the transcript, those offerings share little common ground. Moreover, and with respect to those opinions, a close analysis of each reveals they are largely based upon speculation and surmise, and, frankly, at times were at best no more than educated guesses. Indeed, the plaintiff's expert not only estimated what was spent as but further extrapolated the price backward. Similarly, the "comps" proffered by both sides were not so persuasively comparable. Hasemenn's opinions were not supported by any appreciable expertise.Lastly, all the estimates of a completed structure's value were rank speculation based upon too many future variables and projections.

Against that backdrop and as to the facts, the Court finds that the parties had began with what was an agreement for a joint venture whereby they would construct a house and sell it for a profit. Towards that common goal, both parties would make contributions: the plaintiff's donated construction of the house, the defendant the land upon which it stood. For reasons which need not be attributed to either of them, the purpose of their understanding (and, presumably the players) became frustrated. Between the two events - the agreement and the final frustration - the plaintiff invested $238,050.60 towards the house's completion. Additionally, he expended another $982.59 for water and electric bills as well $20,763.60 for insurance. During that time, the defendant spent $2,984.00 for building permits, $1,015.61 for a fine, $500.00 for registration of the building, $1,989.69 for landscaping, $12,456.00 for insurance, and $21,285.52 for real estate taxes . In total, the plaintiff contributed $259,796.79, the defendant $40,430.82.None of these payments were volunteered other than in the sense that they were the fruit of and flowed from the parties' agreement. Additionally, the defendant has received an insurance award in the amount of $5,000.00 as and for a claim for damage to the property. Subtracting that from the defendant's claim, its net expenses are $35,430.82. As a result, the difference between what the plaintiff and defendant contributed is $224,365.97. The defendant's land has been thereby improved by the partial completion of a structure which - upon final completion - will no doubt increase the property's value. To permit the status quo to remain would be an injustice and allow the defendant to be unjustly enriched by the fruit of the plaintiff's labor; stated otherwise, his property has been improved, at the plaintiff's expense, and to permit the defendant to retain this benefit without compensating the plaintiff would be inequitable .

In the absence of a connection to maintaining the joint venture or a contractual or statutory authority, the defendant's claim for his payment of legal expense is rejected.

Based upon those facts and the credible evidence, the Court finds that as to the plaintiff's third cause of action, specifically its claim of unjust enrichment, it has proven validity of that claim by a preponderance of the credible evidence. The defendant's affirmative defenses, both as a matter of law and fact, have not been proven and are rejected. Additionally, in view of the money award which follows, the plaintiff's second cause of action for an equitable lien is dismissed. See, Bennett v John, supra. Additionally, with respect to the defendant's counter-claims, with the exception of the first, all are dismissed as unproven in law and in fact. As to the first cause of action, however, the defendant has satisfactorily demonstrated that it too had expenses in maintaining the premises and that amount is off-set against the plaintiff's award. With that as a set-off, the plaintiff is therefore awarded judgment in the amount of $224,365.97.

Additionally, the defendant may dispose of the $5,000.00 insurance payment as it deems fit; any liens on the property resulting from this matter are vacated. See, Bennett v John, supra.

The foregoing constitute the decision and order of the Court. Submit judgment on notice.

Dated: ___________________________________________________

Riverhead, NYHon. Ralph T. Gazzillo


Non-Final Disposition