Cabrera v. Green Complex, Inc.

• Decision Date: 15 May 2013
• Docket Number: No. 022338/09KI.,022338/09KI.
• Citation: 2013 N.Y. Slip Op. 50867,972 N.Y.S.2d 142,39 Misc. 3d 1233
• Parties: Joanne CABRERA, Plaintiff, v. GREEN COMPLEX, INC., Defendant.
• Court: New York Civil Court

39 Misc.3d 1233

972 N.Y.S.2d 142

2013 N.Y. Slip Op. 50867

Joanne CABRERA, Plaintiff,

v.GREEN COMPLEX, INC., Defendant.

No. 022338/09KI.

Civil Court, City of New York, Kings County.

May 15, 2013.

David Gordon, Esq., Gordon & Haffner, LLP, Harrison, for Defendants.

Gilbert A. Whyte, Esq, Law Office of Gilbert Whyte, Esq, Brooklyn, for Plaintiff.

KATHERINE A. LEVINE, J.

After trial, defendant Green Complex Inc. (“Green Complex” or “defendant”) moved to dismiss the case on the ground that it was not liable for any damage to plaintiff's property since all the excavation and construction work on the adjacent property it owned was performed by an independent contractor—Ecuador Construction Inc. (“Ecuador”). Defendant also contended that the case should be dismissed because plaintiff failed to present an expert to prove causation or the cost of the property damage, and that the paper estimates she presented were hearsay. Finally, defendant urged the court not to admit into evidence a document signed by defendant's president Charles Malul (“Malul”) agreeing to repair some of the damages to the property because said paper constituted a settlement.

Plaintiff Joanne Cabrera (“plaintiff” or “Cabrera”) sued defendant for property damage in the amount of $15,300; loss of personal property in the amount of $7,500; and failure to pay for services rendered in the amount of $1380.00. She testified that Green Complex tore down a church and started to build on a lot adjacent to her lot in September 2008. This vacant property ran approximately 20 feet from her driveway. She knew that Green Complex was doing the construction because they had “little licensed papers that they put up once they start construction.” which stated “Green Inc.” (Tr. 7). The signs were the size of a notebook page—they had six or seven of them joined together with the permit stating construction would begin.

At the commencement of construction sometime in December 2008, one Mario, who never appeared in court, came over to her house and introduced himself as the one who would be doing construction as the foreman. Plaintiff indicated that Mario was the person in charge; there were 11–12 workers on any given day. On the first day he stated that he needed a supply of water to mix cement and requested that she supply him with water and that at the end of each month he would pay the water bill and compensate her. She said “no problem.” She also supplied him with electricity and allowed him to run the electrical cord to her house. She allowed Mario to use her water and electricity because she wanted to create good will so that he would modernize her home after the job was done. Mario gave her a one time payment in cash of $375—in around February 2009. Water bills come every three months.

Defendant's witness Malul is in the business of developing and selling real estate and is the president and only member of Green Complex. The corporation acquires houses and land and hires people, architects-contractors to fix homes or build them. He has been in the real estate development business for 11 years. Green Complex does not employ any others personnel except a secretary. He purchased the property at 443 Marrion Street in 2007—it was a double lot which consisted of building that had been used as a church and a vacant adjacent lot. He purchased the property from a small bank; the previous owner of the property had defaulted on the mortgage so the bank took it over. The bank did not have experience in developing or building on properties so they asked him to purchase the property (Tr. 39). Malul purchased the property with already approved plans by the Department of Buildings (“DOB”). “That way, I can hire some people and ... build houses and sell them” (Tr. 16). Malul was personally involved in taking steps to build the homes (Tr.19). After the closing he met with an architect who explained to him how to get the permits and start the work (Tr. 20).

Malul looked for a contractor to complete the demolition and excavation work—30% of the church had already been demolished by the time he bought the property. He first re retained the original company that had started the demolition—they took his money, did nothing and disappeared. He then hired another company to complete the demolition work of the church. Defendant used “heavy duty” machinery and brought in a tractor which dug down against her building. Finally, Malul hired Ecuador Construction to build the properties—he had worked with them before and found they to be “good” (Tr. 29).

Malul entered into an agreement with Ecuador (Def.“B”) dated January 3, 2008; ¹ Mario Zingry signed on behalf of Ecuador. Under the agreement, Ecuador was responsible for the installation and maintenance of the fence around the entire property; the completion of the “shoring and underpinning” in accordance with the Department of Building codes; the completion of all brick/block for the front and side of the houses; the completion of the framing of the houses; and the installation of all exterior doors and windows. Ecuador also had to keep the job site clean and free of debris. Ecuador was to take care of any violations received at the property while it was working at the site. Finally, Ecuador was to provide all materials but defendant, as the home owner, was to provide the wood frame, doors and windows. Ecuador never showed him a construction or business license. Malul claims that his name was not listed as the contractor on the permits but he does not know whose name was on it. Defendant failed to produce copies of the permits at trial.

Malul indicated that he paid Ecuador pursuant to a progress schedule. Malul visited the site at least 17 times. The bank loaned Malul the money to then pay Ecuador. Ecuador first had to dig a foundation for which they obtained a lump sum. After they finished digging, they poured a foundation for five houses and they got another lump sum etc. However, there was a verbal understanding that Malul would not pay Mario unless the work was to his satisfaction because payment was also contingent upon the bank's liking it. Malul visited the site with engineers from the bank as it was standard for the engineers to come and view “major construction” (Tr. 52). Ecuador used “various heavy duty machine to dig and pour concrete Malul did not own the equipment Ecuador Construction owns all the equipment.”.

Plaintiff allowed defendant access to her property until March 2009, when Mario cut down her tree. Plaintiff explained that Mario removed a fence over her objection and told her parts of her tree were hanging over his side so he cut down the whole tree. At that point Mario crossed her boundaries and she no longer allowed him on her property. She told Mario he could no longer use the water on her property. While plaintiff alleges he continued to use the water, she never actually saw Mario take the water after the tree was cut down.

Her house sustained the following damage—all the sidings were damaged—there were holes in the siding and water started coming into her basement. Even though defendant replaced the siding the hole is still there. Plaintiff bought her house in 1993 and never experienced any flooding before the current construction. Before work was done to the adjacent property, there was cement straight to the side of her house. After the excavation, defendant left a dirt strip of about two inches between the newly poured concrete sidewalk/driveway and the yellow wall of her building; this gap created water seepage into her basement (Pl. “2 C”). Furthermore, the concrete on the church's property was poured on a slant making it uneven (Pl.2 “D”) and causing water to seep down into her dirt and then into her basement. Defendant failed to build a run off for the water. On cross plaintiff specified that her property ends somewhere in the dirt strip about two inches from the wall of her house.

A picture taken in June 2009 (Pl. “2 J”) shows that defendant did fill the space between the concrete walkway and her house. However, plaintiff was not happy with the way the concrete was poured—in a slab rather than an “L” shape to permit drainage. The picture also showed holes or spaces between the new cement slab and the wall of her home. Plaintiff claims that the water still seeps into the basement. However, plaintiff brought no pictures or estimates as to the cost of repairs of the interior of her house due to the water seepage.

Defendant took down the fence which had divided her property from the empty lot and damaged the sidewalk by the fence, which defendant subsequently fixed. Defendant replaced her old fence, which she had previously filled with “plastic things” to create privacy, with a little chicken wire fence. Plaintiff no longer has privacy in her back yard due to defendant's replacement of her fence and its cutting down her tree. There used to be a fence to the front of her house but they never replaced that. Furthermore, there is a little piece of dirt by the front steps that defendant still did not pave. All the wood and construction material was placed in her back yard. A tractor sat partially on her property over night for at least six weeks and it caused damage to the outside wall of her home.

Plaintiff confronted Mario about the damages. He said he would speak to his boss and would compensate her for the damages. Mario called Mr. Malul several times in her presence and put her on the phone with Malul who he referred to as “his boss” (Tr. 94). Mario told her that he worked for Malul and fixed a lot of his buildings. (Tr. 94, 122). Plaintiff claims the damages were never repaired.

The Admissibility of Malul's Writing.

Plaintiff recognized Malul when he appeared at the first court appearance on April 28, 2009, since she had seen him several times at the work site speaking with Mario. Both plaintiff and Malul agree that April 28, 2009 was the first court date in this case, that it was...