Chapman v. Davis

• Decision Date: 22 March 2022
• Docket Number: 22010115
• Citation: 2022 NY Slip Op 22090
• Parties: Richard Chapman doing business as Chapman Construction, Plaintiff, v. Cheryl Davis and Heather Kunkel, Defendants.
• Court: New York Justice Court

2022 NY Slip Op 22090

Richard Chapman doing business as Chapman Construction, Plaintiff, v. Cheryl Davis and Heather Kunkel, Defendants.

Docket No. 22010115

Justice Court of the Town of Pleasant Valley, Dutchess County

March 22, 2022

Richard Chapman, Plaintiff pro se

Cheryl Davis and Heather Kunkel, Defendants pro se

Darren H. Fairlie, J.

In this small claim, Plaintiff pro se Richard Chapman d/b/a Chapman Construction seeks the recovery of $2, 999.99 for breach of contract. Defendants pro se Cheryl Davis and Heather Kunkel appeared and entered a general denial of the claim, declining to counterclaim. The matter proceeded to trial at the first appearance on February 24, 2022. Each of the parties testified, cross-examined each other and presented documentary evidence to the Court. All twelve exhibits presented by the parties were admitted into evidence upon the consent/stipulation of the parties. For the purposes of simplicity, Exhibits 1-12 are considered to be joint exhibits.

Background

On or about September 15, 2021, the Defendants hired the Plaintiff to perform a basement renovation at their home. Plaintiff drafted a written contract (Exhibit 3), which he signed together with Defendant Kunkel (the "Contract"). The Contract contained a general outline of the work to be performed, as well as a payment schedule.

Albeit with some acrimony, the vast majority of the work was completed and paid for. In end, however, a dispute arose concerning the basement's two egress windows and egress window wells. Regarding these items, the Contract provided as follows: "2-Windows will be a minimum of 20 [inches] to meet egress standards and aluminum window wells with clear cover." (Exhibit 3).

At trial, the parties testified as to the purpose of basement egress windows and wells. By stipulation, excerpts from the relevant building code were entered into evidence. In short basement egress windows are designed to allow for escape and rescue from bedrooms that are located in basement areas. Section R310 of the International Residential Code (Exhibit 8) requires such egress windows and wells to be installed in basement bedrooms pursuant to certain specifications. Among other things, the code limits the height that the egress windows can be installed from the basement floor (44") as well as their minimum opening size (24" high 20" wide), for ease of escape. Where the egress window is located below ground level, the code requires that a "window well" be dug around the window area to allow sufficient space for the window to "fully" open for purposes of emergency escape and rescue through the window and up to ground level. (Exhibit 8).

The problem with the basement egress windows was two-fold. First the window wells were not built large enough to allow adequate space for the egress windows to fully open. Additionally, the egress windows were installed too high from the basement floor.

Upon their discovery of this defect, the Defendants terminated the Contract. At that point in the project, only the Contract's final payment remained outstanding. The Contract's payment schedule described the final payment as follows: "Final balance of contact [sic] due upon completion of basement renovation. $3525.00." (Exhibit 3). Notably, the Contract also provided that, "All work will be completed to customer satisfaction and the construction area as clean It [sic] was before we came" and "Job is completed upon customer satisfaction." (Exhibit 3).

After being terminated by the Defendants, the Plaintiff offered to come back to the project stating the following via text message: "I'll come back, move dirt and throw the old 2 windows away. Other then [sic] that, this job is done in full. You are holding my final payment of $3, 525.00 for nothing. I'm trying to resolve this. You need the egress wells no matter what, as the Building Inspector will tell you." (Exhibits 10, 11, 12). In subsequent text messages, the Plaintiff additionally offered to take $600.00 off of the final payment. (Exhibits 10, 11, 12). The Plaintiff's text messages additionally contained threats that he would contact the Building Inspector and Tax Assessor if the Defendants didn't pay him what he wanted. (Exhibits 10, 11, 12). ^[1]

The Defendants consulted another building professional, who, on or around January 19, 2022, provided the Defendants with the applicable building code provisions concerning the basement egress windows and identified what needed to be remedied. (Exhibit 8).

On January 20, 2022, the Plaintiff filed this small claim seeking the amount of $2, 999.99, which represented the final scheduled payment due under the terms of the Contract. ^[2]

On or around February 4, 2022, the Defendants obtained a contractor's estimate to perform the remedial work for the egress windows and wells, which quoted a total price of $5, 450.00. (Exhibit 9).

Analysis

A. The applicability of General Business Law Article 36-A.

In 1987, the New York State Legislature added Article 36-A to the General Business Law to regulate "home improvement contracts." See General Business Law § 770 et seq. (hereinafter abbreviated as "GBL").

For the purposes of Article 36-A, a "home improvement" is defined as the repairing, remodeling, altering, converting, or modernizing of, or adding to, residential property and shall include, but not be limited to, the construction, erection, replacement, or improvement of driveways, swimming pools, siding, insulation, roofing, windows, terraces, patios, landscaping, fences, porches, garages, solar energy systems, flooring, basements, and other improvements of the residential property and all structures or land adjacent to it. See GBL § 770(3). A "home improvement contract" arises when a homeowner makes an agreement with a home improvement contractor for a home improvement exceeding $500.00. See GBL § 770(6). A "home improvement contractor" is any person or entity who performs a home improvement (on property that they do not own, in whole or in part) for a fee that exceeds $1, 500.00 during any period of twelve consecutive months. See GBL § 770(5).

Here, based upon the nature, scope and dollar-value of the Defendant-Homeowners' basement project (Exhibit 3), the project qualifies as a "home improvement," Plaintiff qualifies as a "home improvement contractor," and the parties' agreement qualifies as a "home improvement contract." As a result, Plaintiff's Contract is subject to the provisions of General Business Law Article 36-A. See GBL § 770 et seq.

B. The effect of failure to comply with General Business Law Article 36-A.

The purpose of Article 36-A is to protect homeowners from contractors, who may be innocently unclear or misunderstood (on one end of the spectrum) or who may be completely unscrupulous or venal (on the other end of the spectrum). Briefly summarized, the statute aims to accomplish its purpose by (1) requiring the contract to be memorialized in a way that the agreement is clear and capable of being understood and accepted the homeowner, (2) requiring the contractor to include certain important terms in the contract along with certain important items of information for the homeowner's benefit and (3) granting special contractual rights to the homeowner. See generally GBL § 771.

Specifically, GBL § 771 requires that every home improvement contract shall be evidenced by a writing, shall be signed by all parties and shall also contain the following information, terms and rights:

(a) The name, address, telephone number and license number if applicable, of the contractor.

(b) The approximate dates, or estimated dates, when the work will begin and be substantially completed, including a statement of any contingencies that would materially change the approximate or estimated completion date. In addition to the estimated or approximate dates, the contract shall also specify whether or not the contractor and the owner have determined a definite completion date to be of the essence.

(c) A description of the work to be performed, the materials to be provided to the owner, including make, model number or any other identifying information, and the agreed upon consideration for the work and materials.

(d) A notice to the owner purchasing the home improvement that the contractor or subcontractor who performs on the contract or the materialman who provides home improvement goods or services and is not paid may have a claim against the owner which may be enforced against the property in accordance with the applicable lien laws. Such home improvement contract shall also contain the following notice to the owner in clear and conspicuous bold face type:

"Any contractor, subcontractor, or materialman who provides home improvement goods or services pursuant to your home improvement contract and who is not paid may have a valid legal claim against your property known as a mechanic's lien. Any mechanic's lien filed against your property may be discharged. Payment of the agreed-upon price under the home improvement contract prior to filing of a mechanic's lien may invalidate such lien. The owner may contact an attorney to determine his rights to discharge a mechanic's lien."

(e) A notice to the owner purchasing the home improvement that, except as otherwise provided in paragraph (g) of this subdivision, the home improvement contractor is legally required to deposit all payments received prior to completion in accordance with subdivision four of section seventy-one-a of the lien law and that, in lieu of such deposit, the home improvement contractor may post a bond, contract of indemnity or irrevocable letter of credit with the owner guaranteeing the return or proper application of such payments to the purposes of the contract.

(f) If the contract provides for

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