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© 2004 Susan Chana Lask All Rights Reserved. SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM, FIRST DEPARTMENT
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ALTERED STRUCTURE, INC. & MICHAEL DESANTO
D/B/A/ ALTERED STRUCTURE,
Plaintiff-Appellee,
-against- NOTICE OF ARGUMENT
Jane Doe,
Defendant-Appellant.
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PLEASE TAKE NOTICE that the appeal in the above entitled action will be calendared for the June, 2004 term of this court.
The argument or submission of the appeal will be at the Supreme Court building, courtroom # 408 at 60 Centre Street, NY, NY 1007 at 10 a.m. on the 10th day of June, 2004, or as soon thereafter as counsel can be heard, as scheduled by the Clerk of the Court.
Dated: April 9, 2004 Law Offices of Susan Chana Lask
New York, New York
___________________________ By: Susan Chana Lask, Esq. Attorney for Defendant-Appellant 853 Broadway, Suite 1516 New York, NY 10003 (212) 358-5762
TO: Brian Cunningham, Esq.
Cunningham & Cunningham
22 Jericho Turnpike, Suite 103
New York, NY 11501
CAL. NO . ___________ Oral Argument By:
Susan Chana Lask, Esq.
New York County Civil Court Clerk's Index No. 01803 TSN 2000
_________________________________________________________________
__________________________________________________________
New York Civil Court
APPELLATE TERM----FIRST DEPARTMENT
----------------------------------------------------------------------------------------
______________________________________________
ALTERED STRUCTURE, INC. & MICHAEL DESANTO
D/B/A/ ALTERED STRUCTURE,
Plaintiff-Appellee,
-against-
JANE DOE,
Defendant-Appellant.
________________________________________________________________
RECORD ON APPEAL
_____________________________________________________________________
LAW OFFICES OF
SUSAN CHANA LASK
Attorneys for Defendant-Appellant
853 Broadway, Suite 1516
New York, New York 10003
(212) 358-5762
_____________________________________________________________________________________________
_____________________________________________________________________________________________INDEX TO RECORD OF ALTERED STRUCTURE VS. Doe
Date Document Page(s)
4/8/04 STATEMENT PURSUANT TO CPLR 5531............................... 1
5/2/03 NOTICE OF APPEAL filed by Defendant................................. 2-3
3/31/03 DECISION & JUDGMENT in favor of Plaintiff in the amount of
$21,350 plus interest from 1/9/99 of Hon. EILEEN N.NADELSON..... 4
11/24/98 SUMMONS & COMPLAINT by Plaintiff Altered Structure, Inc.
against Defendant Jane Doe.......................................... 5-8
1/11/99 ANSWER AND COUNTERCLAIMS TO COMPLAINT by
Defendant Doe........................................................................ 9-16
2/17/99 AMENDED ANSWER AND COUNTERCLAIMS TO COMPLAINT by
Defendant Doe........................................................................ 17-24
PAGES 25-85 REMOVED AS PER THE CLERK'S INSTRUCTIONS
3/26/03 TRANSCRIPT OF TRIAL before Hon. EILEEN N. NADELSON,
certified by court reporter Susan Pearce-Bates.................. 86-166
PLAINTIFFS' DIRECT...................................................... 90-105
CROSS-EXAMINATION................................................. 105-123
REDIRECT EXAMINATION........................................... 123-124
RECROSS EXAMINATION.......................................... 124-133
DEFENDANT'S DIRECT............................................. 133-166
Plaintiffs' Trial Exhibits:
1. Contractor's License In Evidence .......... 167-168
2. Construction Details List In Evidence ........... 169-171
3. Defendant Doe Notes In Evidence ........... 172-182
4. Plaintiffs' Invoice Nos. 1-4
dated 1/28/98-8/7/98 & Invoice
dated 6-15-98 In Evidence ............ 183-187
5. Defendant's Checks
Dated 1/28/98-6/1/98 In Evidence ................ 188-192
INDEX TO RECORD OF ALTERED STRUCTURE VS. Doe (cont'd)
Date Document Page(s)
2/17/04 STIPULATION OF SETTLEMENT of Transcript executed by
Attorneys for Plaintiffs and Defendant.............................. 193
4/8/04 STATEMENT OF NO OPINION & ATTORNEY'S CPLR 2105
CERTIFICATION............................................................... 194
ii
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM, FIRST DEPARTMENT
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ALTERED STRUCTURE, INC. & MICHAEL DESANTO
D/B/A/ ALTERED STRUCTURE,
Plaintiff-Appellee, Index No.
-against- STATEMENT PURSUANT TO CPLR 5531
Jane Doe,
Defendant-Appellant.
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1. The index number of the case in the court below is 01803 TSN 2000.
2. The full names of the original parties are Altered Structure, Inc, Michael deSanto d/b/a Altered Structure, Plaintiffs and Jane Doe, Defendant. There has been no change in the parties.
3. The action was commenced in Civil Court, New York County.
4. The action was commenced on November 24, 1998 by service of summons and complaint, the answer of Defendants was served on January 11, 1999 and an amended answer was served February 17, 1999. A motion to dismiss was made by Defendant on April 19, 2002, opposition by Plaintiff made May 6, 2002, Defendant's supplemental Motion to Dismiss made May 21, 2002, Plaintiffs' Opposition made June 11, 2002 and the lower court's decision denying Defendant's motions made June 26, 2002. On November 26, 2002 Defendant moved to vacate a Judgment on Inquest and the lower court decided for Defendant on March 26, 2003.
5. The nature and object of the action is as follows: breach of contract seeking fees for services of plaintiff contractor pursuant to an oral agreement.
6. This appeal is from a judgment of Honorable Eilleen Nadelson entered in favor of Plaintiff against Defendant on March 31, 2003.
7. The appeal is on a full reproduced record.
Dated: April 9, 2004 Law Offices of Susan Chana Lask
New York, New York
___________________________ By: Susan Chana Lask, Esq. Attorney for Defendant-Appellant 853 Broadway, Suite 1516 New York, NY 10003 (212) 358-5762
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SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM, FIRST DEPARTMENT
-----------------------------------------------------------------x
ALTERED STRUCTURE, INC. & MICHAEL DESANTO
D/B/A/ ALTERED STRUCTURE,
Plaintiff-Appellee, Index No.
-against- ATTORNEY'S CERTIFICATION PURSUANT TO CPLR 2105
Jane Doe, & STATEMENT OF NO OPINION
Defendant-Appellant.
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I, SUSAN CHANA LASK, ESQ. of the Law Offices of Susan Chana Lask with offices at 853 Broadway, Suite 1516, New York, NY 1003, am admitted to practice in the courts of the state and am not a party to this action, hereby subscribe and affirm under penalty of perjury that I am the attorney for the Appellant and that the foregoing papers constituting the Record on Appeal have been personally compared by me with the originals filed herein and have been found to be true and complete copies of the Originals and the whole thereof, all of which are now on file in the office of the Clerk of the Civil Court, County of New York.
There are no other opinions rendered in this case other than the ones that appear on the following pages of the record of Appeal: 4,71,72,73 and 74,
Dated: April 9, 2004 Law Offices of Susan Chana Lask
New York, New York
___________________________ By: Susan Chana Lask, Esq. Attorney for Defendant-Appellant 853 Broadway, Suite 1516 New York, NY 10003 (212) 358-5762
PROOF OF SERVICE
STATE OF NEW YORK, COUNTY OF NEW YORK ss.:
I, the undersigned, an attorney duly admitted to practice in the courts of New York State and in good-standing, pursuant to CPLR 2106, affirm the following under penalties of perjury:
I am not a party to the action, am over 18 years of age and have offices at 853 Broadway, Suite 1516, New York, NY 10003. On April 9, 2004, I served the within Record of Appeal by depositing a true copy of it, enclosed in a post paid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State, addressed to the attorney for appellee as follows:
Brian Cunningham, Esq., Cunningham & Cunningham, 22 Jericho Turnpike Mineola, NY 11501
DATED: April 9, 2004
New York, NY
LAW OFFICES OF SUSAN CHANA LASK
-------------------------------------------------
BY: SUSAN CHANA LASK, ESQ.
Attorney for Defendant-Appellant
853 Broadway, Suite 1516
New York, NY 10003
(212)358-5762
--------------------------------------------------------------------------------------------
CAL. NO . ___________ Oral Argument By:
Susan Chana Lask, Esq.
New York County Civil Court Clerk's Index No. 01803 TSN 2000
_________________________________________________________________
__________________________________________________________
New York Civil Court
APPELLATE TERM----FIRST DEPARTMENT
----------------------------------------------------------------------------------------
______________________________________________
ALTERED STRUCTURE, INC. & MICHAEL DESANTO
D/B/A/ ALTERED STRUCTURE,
Plaintiff-Appellee,
-against-
Jane Doe,
Defendant-Appellant.
________________________________________________________________
BRIEF FOR DEFENDANT-APPELLANT
_____________________________________________________________________
LAW OFFICES OF
SUSAN CHANA LASK
Attorneys for Defendant-Appellant
853 Broadway, Suite 1516
New York, New York 10003
(212) 358-5762
_____________________________________________________________________________________________
_____________________________________________________________________________________________
TABLE OF CONTENTS
Page No.
I. QUESTIONS PRESENTED............................................................. 1
II. NATURE OF THE CASE.............................................................. 2-3
III. ARGUMENT............................................................................................... 3
A. THE LOWER COURT ERRED AS A MATTER OF LAW TO allow A
HOME IMPROVEMENT CONTRACTOR to present its CASE at trial
SOLELY as A BREACH OF CONTRACT ACTION WHEN A WRITTEN
CONTRACT DID NOT EXIST ..................................................... 3-4
i. A Contractor that Fails to Provide a Homeowner with a Written
Contract as Mandated by General Business Law §771 Can
Only Plead and Present at Trial a Quantum Meruitt Cause of Action,
Not a Breach of Contract Action......................................................... 4
ii. The Lower Court's Decision Must be Reversed and the Case Dismissed
Because the Contractor Never Proved Any of the Elements of a
Quantum Meruitt Cause of Action................... 4-6
B. THE LOWER COURT'S DECISION MUST BE REVERSED AND THE
CASE DISMISSED AS PLAINTIFF CONTRACTOR NEVER PROVIDED
EVIDENCE TO PROVE THE REASONABLE VALUE OF HIS SERVICES...... 6-8
C. THE LOWER COURT'S MISAPPLICATION OF THE LAW BY LIMITING
THE CASE TO BREACH OF CONTRACT CAUSED THE COURT ITSELF
TO BE CONFUSED AND PREJUDICED THE DEFENDANT
FROM PRESENTING HER CASE...................... 8-11
D. PLAINTIFF ALTERED STRUCTURE INC WAS NOT LICENSED AND MUST
BE DENIED ANY RECOVERY AS AN UNLICENSED CORPORATION CAN
NOT ACT AS PLAINTIFF NOR RECOVER UNDER THE JUDGMENT........... 11-13
E. Plaintiff "DeSanto d/b/a Altered Structure" Was Not
Licensed and Can Not Be A Plaintiff Nor Recover
UNDER THE JUDGMENT....................................................... 13
IV. CONCLUSION............................................................................................... 13
TABLE OF AUTHORITIES
CASES CITED PAGE(S)
Bauman Assocs. v. H & M Intl. Transp.
171 A.D.2d 479, 484, 567 N.Y.S.2d 404.................................................. 5,7
Bronold v. Engler,
194 N.Y. 323, 87 N.E. 427........................................................................ 12
Donohue v. Minicucci
174 A.D.2d 1013, 572 N.Y.S.2d 171 (4th Dep't, 1991)........................... 8
Frank v. Feiss,
266 A.D.2d 825, 698 N.Y.S.2d 363 (4th Dept, 1999)........................ 4
George Piersa, Inc. v. Rosenthal,
72 A.D.2d 593, 421 N.Y.S.2d 91.................................................................... 11
Geraldi v. Melamid
212 A.D.2d 575, 622 N.Y.S.2d 742 (2d Dep't, 1995)............................. 7
Hammerman v. Jamco Indus.,
119 A.D.2d 544, supra, 500 N.Y.S.2d 718.............................................. 12
Harter v. Krause,
250 A.D.2d 984, 986-987, 672 N.Y.S.2d 545 ................................... 4
Lehrer McGovern Bovis, Inc. v. New York Yankees,
615 N.Y.S.2d 31, 207 A.D.2d 256 (N.Y.A.D. 1 Dept.,1994)............... 5
Leroy Callender, P.C. v. Fieldman,
676 N.Y.S.2d 152 (App. Div. 1st Dep't 1998)..................................... 4
Lewis v.Barsuk
55 A.D.2d 817, 389 N.Y.S.2d 952 (4th Dep't, 1976)................................ 6
Millington v. Rapoport,
98 A.D.2d 765, 469 N.Y.S.2d 787............................................................. 12
Mindich Developers v. Milstein,
227 A.D.2d 536, 642 N.Y.S.2d 704.................................................... 4
Moors v. Hall,
143 A.D.2d 336, 337-338, 532 N.Y.S.2d 412........................................... 5
TABLE OF AUTHORITIES (CONT'D)
CASES CITED PAGE(S)
Najjar Indus. v. City of New York
87 A.D.2d 329, 331-332, 451 N.Y.S.2d 410, affd.
68 N.Y.2d 943, 510 N.Y.S.2d 82, 502 N.E.2d 997.................................... 5
Paolangeli v. Thaler,
187 A.D.2d 881, 590 N.Y.S.2d 316 (3rd Dept,1992)....................................... 7
Papadopulos v Santini,
159 AD2d 335, 552 NYS2d 611 (1st Dept, 1990)....................................... 12
Sturtevant v. Fiss, Doerr & Carroll Horse, Co.,
173 A.D. 113, 159 N.Y.S. 399 (1st AD, 1913).......................................... 7
U.S. East Telecommunications, Inc. V. US West Communications Services, Inc.,
38 F.3d 1289 (2d District, 1994).................................................................... 7
Vitanza v. City of New York,
367 N.Y.S.2d 820........................................... 12
William Conover, Inc. v. Waldorf,
251 A.D.2d 727, 673 N.Y.S.2d 770.................................................... 4
Wexler v. Rust,
144 A.D. 296, 128 N.Y.S. 977............................................................. 12
STATUTES
General Business Law § 771..................................................................... 4,11
I. QUESTIONS PRESENTED
1. Did the Lower Court commit reversible error under the law by allowing the
Plaintiff contractor's case to proceed solely on a breach of contract
theory when no written contract existed?
2. Must the case be dismissed if the Plaintiff Contractor never pled nor
proved at Trial any of the elements of quantum meruitt?
3. Did Plaintiff contractor provide sufficient evidence that his invoices were valid
under a quantum meruitt cause of action?
4. Can a corporate plaintiff that is not a licensed contractor with the City recover in a
quantum meruitt case?
II. NATURE OF THE CASE
Defendant-Appellant Doe ("Doe") hired Plaintiff-Respondent DeSanto ("DeSanto") to provide home improvement work at her premises. R.88. DeSanto never provided a written contract pursuant to GBL §771 mandating written contracts for home improvement work. R.88,104. DeSanto commenced work at Doe's premises on or about January 28, 1998. R.6,19. DeSanto took advance payments from Doe months before he invoiced for work performed. R. 127. Those advance payments were made by checks payable to "Mr. Michael Desanto" on January 28, 1998 for $2,000.00, February 19, 1998 for $2,000.00, February 19, 1998 for $2,000.00 and a check made payable to "Altered Structure" on March 16, 1998 for $4,225.00, totaling $10,225.00 in advance payments. R.188-192.
On or about March 16, 1998, about three months after receiving Doe's advance payments, DeSanto submitted a handwritten invoice named "Invoice #1" that listed general work and a grand total for each listing. R.183. Additional payments of $10,500.00 were made by Doe to DeSanto from May 8, 1998 through June 1, 1998. R.187. After said additional payments, DeSanto submitted Invoice #2 covering the period March 16 through June 1, 1998, again generally listing work with a grand total to the right of each listing. R.184. DeSanto then submitted a handwritten Invoice #3 containing general listings of "kitchen renovation.....$6,000, Bathroom Renovation....$6,500, Extras s/s work, closet work, window repair...$1,175", requesting an additional $13,550.00 from Doe. R.185. On or about August 7, 1998 DeSanto submitted Invoice No. 4 called "Extras" generally listing some 12 items with totals by each item, requesting an additional $7,800.00. R.186.
On or about November 24, 1998 suit was filed by Plaintiff Altered Structure, Inc., and later Plaintiff Michael DeSanto d/b/a Altered Structure was added as a Plaintiff, alleging breach of contract to recover $21,350.00. R.5-9, which is the total of Invoices #3 and #4. R.101. Doe answered that the invoices were inflated, charged for work not agreed upon and charged for work paid for in advance. R. 16. At trial, Plaintiffs' presented its case solely as a breach of contract cause of action. R.87,88, and presented one witness, a Michael DeSanto as the principal of Plaintiff Altered Structure, Inc. R.88. Neither Plaintiff "Altered Structure, Inc." nor the Plaintiff named "Michael DeSanto d/b/a Altered Structure" were licensed contractors; the only license produced at trial was for a person named Michael Desanto, who was not a named party to this action. R. 167. The court never received direct testimony nor evidence from any of the named Plaintiffs nor from the witness who appeared as principal for Plaintiff Altered Structure, Inc. regarding the reasonable value of services invoiced, nor was evidence submitted to substantiate the handwritten invoices. R.91-105. Doe established at trial during her cross-examination of witness Desanto that Invoices #1-4 double-billed her for work already paid for as DeSanto's March, 1998 Invoice #1 charged $4,000.00 to "skin walls, compound smooth" then Invoice #4 in August, 1998 charged for the same work. R. 112-113. Plaintiff also established during her cross that DeSanto had no explanation as to why there were invoices covering work that was invoiced for months before those invoices, wherein DeSanto's testimony was "I don't know, you know, because it showed up later. I don't know." R.113.
The court proceeded on the case as solely a breach of contract issue stating to Defendant that "If you can prove your case, that he did not do this work, then you are going to win. If you can't, then you are going to lose." R.139. The court refused to accept Defendant's testimony that the invoices were not itemized and chronically interrupted her case. R. 133-149. After the trial the lower court's judgment was "rendered in favor of Plaintiff" for the full amount of Plaintiff's invoices submitted at $21,350.00, plus interest. R.4.
III. ARGUMENT
A. THE LOWER COURT ERRED AS A MATTER OF LAW TO allow A
HOME IMPROVEMENT CONTRACTOR to present its CASE at trial
SOLELY as A BREACH OF CONTRACT ACTION WHEN A WRITTEN
CONTRACT DID NOT EXIST
Plaintiffs'1 opening statement at trial was "This is a breach of contract action".R. 87, 88. Plaintiffs' further insured the evidence would be limited to a breach of contract action, stating:
"We are going to present evidence to establish that the Plaintiff entered into
an agreement with the Defendant to render construction services at her
residential property. The Plaintiff performed the services as requested, was
partially paid, and a dispute arose to the effect that my client left without
receiving full payment for the services that he did render." R. 88.
Plaintiff's complaint was limited solely to a breach of contract cause of action.R.5-8. Consistent with its pleadings and opening statement, Plaintiff limited its testimony and proof at trial solely to a breach of contract action wherein Plaintiff attempted to prove an offer, acceptance, consideration and damages being nonpayment. Apparently proving an offer, Plaintiff testified that there was an agreed upon price of $60-80,000.00. R.95. Apparently proving an acceptance, Plaintiff testified that he started work a day after the offer R. 95. and he received $20,725.00 from Plaintiff. R. 99. Apparently proving damages, Plaintiff testified he was not paid an additional $20,725.00 for work he completed listed in its invoices 3 and 4. R.100-101;104. Plaintiff's testimony would have fared well for the breach of contract action that Plaintiff limited itself to but for the fact that no written contract existed between the Plaintiff Contractor and the Defendant Consumer. R. 104 and pursuant to General Business Law §771 a written contract must exist to sustain a breach of contract cause of action.
i. A Contractor that Fails to Provide a Homeowner with a Written
Contract as Mandated by General Business Law § 771 Can
Only Plead and Present at Trial a Quantum Meruitt Cause of Action,
Not a Breach of Contract Action
General Business Law §771 ("GBL") mandates that all home improvement contracts shall be in writing and contain certain terms of payment, fees for services and materials and start and completion dates, among other terms. GBL §771 is a consumer protection statute to prevent the very misunderstandings that occurred in this case and to protect the consumer from overreaching of the contractor, such as charging for work that was not agreed upon.
GBL §771 limits the contractor who disregards its written contract requirements to pleading and proving a quantum meruitt cause of action (Leroy Callender, P.C. v. Fieldman, 676 N.Y.S.2d 152 (App. Div. 1st Dep't 1998); Frank v. Feiss, 266 A.D.2d 825, 698 N.Y.S.2d 363 (4th Dept, 1999); William Conover, Inc. v. Waldorf, 251 A.D.2d 727, 673 N.Y.S.2d 770; Harter v. Krause, 250 A.D.2d 984, 986-987, 672 N.Y.S.2d 545; Mindich Developers v. Milstein, 227 A.D.2d 536, 642 N.Y.S.2d 704). The contrator thus has the burden of pleading and proving the reasonable value of his services--a burden that requires substantial proof. Since it has been established that Plaintiff here solely based its pleadings and its case at trial on a breach of contract theory and not quantum meruitt then the Appellate Term at this very juncture can rule in Defendant's favor by reversing the lower court's holding and dismissing Plaintiff's complaint; however, to make a complete record and to establish the law in this department, Defendant-Appellant proceeds for the court's complete understanding.
ii. The Lower Court's Decision Must be Reversed and the Case Dismissed
Because the Contractor Never Proved Any Of The Elements of a
Quantum Meruitt Cause of Action
In order to establish quantum meruitt a party must prove (1) the performance of the services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services. (LehrerMcGovern Bovis, Inc. v. New York Yankees, 615 N.Y.S.2d 31, 207 A.D.2d 256 (N.Y.A.D. 1 Dept.,1994). Nowhere does the record show that the Plaintiff proved any of the four elements of a quantum meruitt case. The record in fact is clear that the Plaintiff proceeded solely on a breach of contract cause of action. R. 88. Plaintiff only testified that he commenced work based upon an oral agreement and some of his services were not paid. Whatever work Plaintiff claimed it performed had to be proven for each portion of work that (1) it performed the services in good faith, (2) that the work was acceptable to Defendant, (3) that it expected additional payments beyond what was received in advance from Defendant and notably Plaintiffs' failed to plead (4), the fourth and crucial element of quantum meruitt, the measure of damages which would be the reasonable value of services rendered.
Since no written contract existed in this case, then at most the Plaintiff had an oral agreement with the Defendant to perform construction work at her premises. This Department held in Leroy supra. that an oral agreement in a contractor case must rest on quantum meruitt which requires the contractor to prove the reasonable value of its services. In that case, just as this one, there were hotly disputed issues as to the scope of work agreed upon, scope of additional work requested and factors in determining the plaintiff's compensation. The Leroy court held, and cases follow, that the measure of damages in quantum meruit is the reasonable value of the labor and materials supplied by a plaintiff contractor (Bauman Assocs. v. H & M Intl. Transp., 171 A.D.2d 479, 484, 567 N.Y.S.2d 404; Moors v. Hall, 143 A.D.2d 336, 337-338, 532 N.Y.S.2d 412; Najjar Indus. v. City of New York, 87 A.D.2d 329, 331-332, 451 N.Y.S.2d 410, affd. 68 N.Y.2d 943, 510 N.Y.S.2d 82, 502 N.E.2d 997). In the present case, Plaintiff simply submitted invoices 3 and 4, R.185-186, to prove an amount due Plaintiff, but never once testified to nor offered evidence as to the details of each invoice he claimed monies were due from nor submitted any proof substantiating the reasonable value of those services. The Plaintiff simply thrust unsubstantiated, unitemized handwritten invoices before the lower court at trial labeled invoice numbers 3 and 4 and demanded payment.
B. THE LOWER COURT'S DECISION MUST BE REVERSED AND THE
CASE DISMISSED AS PLAINTIFF CONTRACTOR NEVER
PROVIDED EVIDENCE TO PROVE THE REASONABLE
VALUE OF HIS SERVICES
Contrary to the law, Plaintiffs submitted handwritten invoices with a general statements and grand totals by each statement without any calculations or a breakdown of services on those invoices. Plaintiffs' invoices have the following handwritten notes R.185-186:
"Invoice #3 4-1-98 6-12-98
Kitchen renovation 6000
Bathroom renovation 6500
Extra
S/S work
Closet work
Window wall repair 1175
$13,675" R.185.
"Billing Invoice # 4- 8-7-98
1. Tile deliver 1800 lbs from Brookly(sic) 450
2. Wall repair from Plumbers 175
3. Bathroom door know installation 150
4. Kitchen Counter (unlegible) & material 1,500
5. S/s work labor 1,200
6. Paint bronze window trim 650
7. Miss order size stair rails cut & inst 350
8. Demo Book case bed & shelves 450
9. All electrical work 1200
10. Apartment wall compound from painter 1500
11. COD Tile Sealer 25
12. Simons Harware mark-up 150
$7800.00" R. 186.
Nowhere in those notes can it be discerned just what services were provided, how much the cost for the services were, who performed the work, when and at what cost per hour or day and how many hours the work involved. In Lewis v.Barsuk, 55 A.D.2d 817, 389 N.Y.S.2d 952 (4th Dep't, 1976) the appellate term held that a contractor's handwritten notes with grand totals for work completed were insufficient to prove the reasonable value of each item of work pursuant to an oral agreement as it did not show complete calculations for the labor. In order to establish the reasonable value of services, the court should hear testimony regarding the nature, extent and value of services rendered. Sturtevant v. Fiss, Doerr & Carroll Horse, Co.,173 A.D. 113, 159 N.Y.S. 399 (1st AD, 1913). A plaintiff must submit sufficient direct evidence to support the value of his services in a quantum meruitt case. Geraldi v. Melamid, 212 A.D.2d 575, 622 N.Y.S.2d 742 (2d Dep't, 1995); Bauman(supra). In Geraldi (supra) the plaintiff failed to include values as to the amount of services or to value the hourly, daily or weekly services rendered. The Geraldi court held that failure to include any calculations regarding the reasonable value of services voids any claim for quantum meruitt. In Bauman(supra) this department rejected the plaintiff's quantum meruit claim because the plaintiff failed to specify the expenditures it made as well as the reasonable value of the services performed. The Bauman court noted that the plaintiff "merely assert[ed] in a conclusory, nonspecific manner" that it had performed services for the defendant, and demanded the contract price, Id. at 484, and found that such evidence adduced at trial did not support the lower court's determination that the plaintiff was entitled to recover in quantum meruit for services rendered to the defendant. In the present case, Plaintiffs submitted absolutely no evidence to the lower court to substantiate its general, unitemized invoices.
Sufficient evidence would include detailed invoices with corroborating testimony and expert testimony for a contractor to prove the reasonable value of his services at trial when no written contract exists. Some examples of evidence satisfying the courts are found in Paolangeli v. Thaler, 187 A.D.2d 881, 590 N.Y.S.2d 316 (3rd Dept,1992) and U.S. East Telecommunications, Inc. V. US West Communications Services, Inc., 38 F.3d 1289 (2d District, 1994). In Paolangeli (supra) the court held a contractor satisfied his burden of proof in quantum meruitt cases by providing invoices detailing daily records of equipment used, the number of equipment used and the hours of use. In U.S. East Telecommunications (Supra) the court determined that a contractor sufficiently proved the reasonable value of its services by providing invoices detailing the summary of each employees hours worked on the job, the hourly rate of pay, and supplemented that proof with timesheets for each employee. Additionally, the contractor there provided testimony corroborating each invoice and provided documentary evidence of three federal agencies stating the contractor's work was competent.
In this case Plaintiff failed to plead or present any evidence at trial supporting the reasonable value of its services to recover on a quantum meruitt action. Plaintiff failed to prove its case because Plaintiff established at trial that it would proceed solely on a breach of contract theory R. 87,88, and not a quantum meruitt action as mandated by law. Plaintiff never satisfied its burden of proof nor did it intend to satisfy it. The lower court's decision must be reversed and the case dismissed.
C. THE LOWER COURT'S MISAPPLICATION OF THE LAW BY LIMITING
THE CASE TO BREACH OF CONTRACT CAUSED THE COURT ITSELF
TO BE CONFUSED AND PREJUDICED THE DEFENDANT
FROM PRESENTING HER CASE
The record shows the lower court was confused itself by accepting Plaintiffs' cause of action as a breach of contract only. The lower court completely ignored the Plaintiff's burden of establishing a quantum meruitt action as required by law. It wrongly placed the burden of proof upon the Defendant, limiting the issues as to whether the contractor completed work or not. That was an impossible burden because Plaintiffs' invoices were so general without any breakdown or explanation that Defendant had no starting point to disprove anything in the unitemized invoices; thus, the very reason the law exists that the burden of proof is upon the contractor to evidence itemized bills so a Defendant has something to respond to in a court of law. Moreso, the extent of prejudice upon Defendant has been the law in the lower court from the start of this case by the lower court proceeding upon Plaintiffs' complaint that limited the issues to a contract cause of action when it was not such an action. In Donohue v. Minicucci, 174 A.D.2d 1013, 572 N.Y.S.2d 171 (4th Dep't, 1991) the appellate court reversed a judgment against defendant and dismissed an plaintiff attorney's complaint for fees due, holding that the plaintiff's failure to plead quantum meruitt prejudiced the defendant at trial by not alerting the defendant to counter with evidence as to the reasonable value of services.2 The extent of prejudice done to a Defendant when a plaintiff pleads a wrong cause of action and then further limits its proofs at trial to the wrong pleading is cause for any judgment based upon such prejudice to be dismissed.
Nevertheless, the lower court in this case did not understand the law so the Defendant had no choice but to attempt to prove Plaintiffs' invoices were unreasonable and general. Naturally, since the court did not understand the proper application of the law, it became frustrated, interrupting the Defendant's case and limiting her to "let's prove that you paid the bills, or not paid the bills", R.129, or when she tried to establish whether the bills reflected payments to date the court interrupted her again, "Are we ready to go on your case, otherwise we are going to be here until tomorrow on your questions?" R. 129-130. Defendant explained to the court that she wanted to establish that she did not receive itemized bills and the court again interrupted by this time going off the record and upon returning on the record Defendant's whole line of questioning regarding itemization was abandoned. R.130-132.
A review of the record shows much frustration by the court which was created by its own misapplication of the law. If it would have limited the case to quantum meruitt and not a breach of contract cause of action then the court would not have been frustrated whenever Defendant rightfully attempted to prove the elements of quantum meruitt. The Defendant each time focused on the issue of the reasonable value of Plaintiffs' work as reflected by its general, unitemized bills yet the court stopped Defendant's case. The court's misunderstanding and frustration is very clear when it tells Defendant to present her case as "...you just tell us why you think you should not have to pay the money." R. 132, or during Defendant's case the court interrupted numerous times misdirecting her flow of the case and directing her to prove that if work was completed then Defendant must pay for it, stating: "That's what we are looking at because if he was involved then he can charge you for it." R. 134. But that is not the case, the case under quantum meruitt is whether the invoices were valid when there was no written contract and the Plaintiffs' had the burden of proving that, not the Defendant.
The court further limited Defendant's case by interrupting and telling her that if she did not have a bill from another contractor that indicates they did work listed on Plaintiffs' invoices then Defendant can not prove her case. R. 135. That was completely a wrong direction by the court as there was no way Defendant could delineate Plaintiffs' general listings of "kitchen renovation, bathroom renovation and extras" unless Plaintiffs' provided an itemized bill because there was no written contract. Defendant tried numerous times to present her case that there was no itemization for Plaintiffs' invoices, stating "I do not have any itemization from the Plaintiff about what the renovation entailed.." R. 134, "...kitchen renovation, what's the itemization for it?" R. 136. She was on the right track attempting to prove her case that the invoices were improper for being unitemized but the court was so confused by forcing a contract cause of action when there was no contract and only unitemized bills existed that its confusion was made clear when it stated "And I don't know what the detail is, but--what else in the kitchen?" and "I don't know if you need a breakdown, get a breakdown." R. 138. Clearly the court could not even establish itself just what Plaintiffs' invoices represented so the court for pages on end allowed numerous interjections by the Plaintiff and itself interrupted Defendant while she tried to present her case. R.138-146. The most telling of the court's misapplication of the law to Defendant's prejudice was when it stopped her case and directed her to make a burden of proof that was not required under the law:
"THE COURT: You have an option of moving forward, taking the decision,
winning or settling...If you can prove your case, that he did not do this work,
then you are going to win. If you can't, then you are going to lose.
The fact that you made a mistake and did not get a rundown, or whatever it is--
Doe: He kept billing me and telling me--billing me for things that were already
paid for.
THE COURT: You have to prove that." R.139
Defendant did not make a mistake; the law is clear under GBL §771 that the Plaintiffs' unlawfully provided home improvement services without a written contract and then submitted unitemized general invoices that could not pass under a quantum meruitt cause of action. Contrary to the court's direction that the Defendant must prove that the contractor did not do the work to win, the proper direction was for the court to direct Plaintiffs to prove the reasonableness of its invoices, which Plaintiffs never proved. In fact, Defendant had no burden of proof at all once the contractor Plaintiffs rested their case and failed by law to prove the reasonableness of their invoices. The case should have been dismissed at that point and in no way should there have been a judgment granting the total of unproven invoices.
D. PLAINTIFF ALTERED STRUCTURE INC WAS NOT LICENSED AND MUST
BE DENIED ANY RECOVERY AS AN UNLICENSED CORPORATION CAN
NOT ACT AS PLAINTIFF NOR RECOVER UNDER THE JUDGMENT
The lower court's judgment was "rendered in favor of Plaintiff" for the full amount of the invoices submitted at $21,350.00, plus interest (R.4) . The "Plaintiff" listed in the case caption are two, "Altered Structure, Inc. and Michael DeSanto d/b/a Altered Structure". The only person who testified that they were licensed was a Michael DeSanto who testified as the principal of Altered Structure Inc. R. 90; there was no license produced for Altered Structure, Inc. R.167. By law, the lower court's judgment can not be in favor of an unlicensed contractor. Altered Structure, Inc. was not licensed and can not recover nor be a Plaintiff in this case. The law is clear that if a company is not a licensed contractor than it can not recover for any work performed, even if its president is licensed and even if the homeowner knew the entity was unlicensed. George Piersa, Inc. v. Rosenthal, 72 A.D.2d 593, 421 N.Y.S.2d 91 (recovery denied to unlicensed corporation even though president was licensed).
Plaintiffs' case was further flawed by never introducing a witness to testify on behalf of any of the name Plaintiffs. The only witness introduced by Plaintiffs was a Michael DeSanto who testified on behalf of Altered Structure, Inc as introduced by Plaintiffs' counsel, "I am going to present only one witness today, and that will be the principal, Michael Desanto." R.88. The principal of the unlicensed corporation testified for that corporation as the Plaintiff, not for Michael Desanto d/b/a Altered Structure. In fact, no evidence was produced that Altered Structure was a valid company licensed to do business in New York State, only that a Michael DeSanto was a licensed contractor. R. 90. The only evidence of any connection with New York was Plaintiffs' introduction into evidence of a license granted to a Michael Desanto individually, not to a Plaintiff named "Altered Structure , Inc." or "Michael DeSanto d/b/a Altered Structure" R. 167.
New York has taken a strict approach in this area of the law and our "courts have been adamant in their refusal to permit recovery under a contract * * * where the contractor is not licensed" (Vitanza v. City of New York, supra, at 44, 367 N.Y.S.2d 820; Bronold v. Engler, 194 N.Y. 323, 87 N.E. 427 [recovery denied to unlicensed plumbing firm even though firm's manager was licensed], Papadopulos v Santini, 159 AD2d 335, 552 NYS2d 611 (1st Dept, 1990) (failure of professional to obtain required license renders whole agreement void and the unlicensed provider of services could not recover on any basis of work performed), Wexler v. Rust, 144 A.D. 296, 128 N.Y.S. 977 [recovery denied to unlicensed plumbing contractor even though it used a licensed subcontractor]; Hammerman v. Jamco Indus., 119 A.D.2d 544, supra, 500 N.Y.S.2d 718 [recovery denied to unlicensed corporation even though president, as architect, was exempt from license requirement]; Millington v. Rapoport, 98 A.D.2d 765, 469 N.Y.S.2d 787 [recovery denied even though homeowner knew that contractor was unlicensed]. Thus, Plaintiff Altered Structure was an unlicensed entity and can not maintain an action against Defendant
Doe nor can it be a named party in the judgment.
E. Plaintiff "DeSanto d/b/a Altered Structure" Was Not
Licensed and Can Not Be A Plaintiff Nor Recover UNDER
THE JUDGMENT
The remaining Plaintiff is "Michael DeSanto d/b/a Altered Structure". As evidenced above, there was no witness on behalf of Plaintiff "Altered Structure, Inc." and there was no witness introduced on behalf of a Plaintiff named "Michael Desanto d/b/a Altered Structure". Michael DeSanto testified solely as to his being a principal of Altered Structure, Inc. R.88. At no time did Plaintiff introduce testimony for the entity "Michael DeSanto d/b/a Altered Structure", nor was there any evidence admitted by Plaintiff that such an entity properly existed in this State. In following the law as stated above, since there was no license introduced for Plaintiff "Michael DeSanto d/b/a/ Altered Structure" then that Plaintiff also can not recover. The only person licensed was a Michael DeSanto who was not a named Plaintiff; therefore, the whole case should be dismissed as the Plaintiffs' claiming to recover were unlicensed contractors and the law does not allow recovery to unlicensed persons or entities.
IV. CONCLUSION
Plaintiffs failed to prove a quantum meruitt case, the lower court's decision must be reversed and Plaintiffs' complaint should be dismissed in its entirety. Also, as named Plaintiffs Altered Structure, Inc. And "Michael DeSanto d/b/a Altered Structure" did not have a license in those names nor evidenced the validity of a "dba" named Altered Structure then any judgment with respect to those unlicensed entities must also be reversed.
Dated: New York, New York
April 9, 2004 Yours, etc.,
______________________
Susan Chana Lask, Esq.
Attorney for Defendant-Appellant
853 Broadway, Suite 1516
New York, NY 10003
(212) 358-5762
PROOF OF SERVICE
STATE OF NEW YORK, COUNTY OF NEW YORK ss.:
I, the undersigned, an attorney duly admitted to practice in the courts of New York State and in good-standing, pursuant to CPLR 2106, affirm the following under penalties of perjury:
I am not a party to the action, am over 18 years of age and have offices at 853 Broadway, Suite 1516, New York, NY 10003. On April 9, 2004, I served the within Brief for Appellant by depositing a true copy of the papers, enclosed in a post paid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State, addressed to the attorney for appellee as follows:
Brian Cunningham, Esq., Cunningham & Cunningham, 22 Jericho Turnpike Mineola, NY 11501
DATED: April 10, 2004
New York, NY
LAW OFFICES OF SUSAN CHANA LASK
-------------------------------------------------
BY: SUSAN CHANA LASK, ESQ.
Attorney for Defendant-Appellant
853 Broadway, Suite 1516
New York, NY 10003
(212) 358-5762
2
The Plaintiff in that case notably also failed to submit proof of reasonable value of its services.
1
The term "Plaintiffs" or "Plaintiff" are used interchangeably for convenience of the initial arguments as this Brief will later conclude in sections D and E herein that there actually was no Plaintiff at all since the named Plaintiffs were unlicensed and by law could not recover and the only witness testified on behalf of himself as an individual who was not a named Plaintiff.
