Charles T. Driscoll Masonry Restoration Company, Inc. v. County of Ulster

• Decision Date: 17 May 2007
• Docket Number: 501330.
• Citation: 40 A.D.3d 1289,2007 NY Slip Op 04205,836 N.Y.S.2d 362
• Parties: CHARLES T. DRISCOLL MASONRY RESTORATION COMPANY, INC., Respondent, v. COUNTY OF ULSTER, Appellant.
• Court: New York Supreme Court — Appellate Division

40 A.D.3d 1289

836 N.Y.S.2d 362

2007 NY Slip Op 04205

CHARLES T. DRISCOLL MASONRY RESTORATION COMPANY, INC., Respondent, v. COUNTY OF ULSTER, Appellant.

501330.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided May 17, 2007.

Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered May 23, 2006 in Ulster County, upon a decision of the court in favor of plaintiff.

SPAIN, J.

This contract dispute arises in connection with exterior facade renovations performed on the Ulster County Office Complex, located in the Town of Ulster. Plaintiff was awarded a contract by defendant in the amount of $84,645¹ for the completion of specified work, including window installation, sealant replacement, Exterior Insulation and Finish System (hereinafter EIFS) repair and painting. EIFS—a system which involves applying insulation to the outer surface of a building and then coating it with synthetic stucco—utilizes panels of insulation connected at control joints which must be sealed against moisture.

Shortly after plaintiff began the work, defendant complained of a lack of uniformity in the application of the sealant over the EIFS control joints. After several meetings to address this and other issues, it was agreed—without a written change order— that plaintiff would perform a sample application using a different sealant and technique to accomplish the aesthetic qualities desired by defendant. At the same meeting, plaintiff's vice-president, Stephen Driscoll, informed defendant that the environmentally sensitive product that defendant had requested plaintiff use to remove mold from the building's facade was not working; the parties agreed—again, without a written change order—that plaintiff would instead use bleach.

Defendant inspected the sample sealant application prepared by plaintiff and accepted the new sealant, but again took issue with the manner in which it was being applied. Further work was done by plaintiff to alleviate defendant's concerns, but defendant eventually informed plaintiff that it was terminating the contract. Plaintiff appealed the termination, presenting defendant with evidence that the sealant had been applied within industry standards. After discussions about the work resulted in plaintiff repairing, sealing and coating a sample area of the building for defendant's inspection, defendant accepted the work and the project resumed. Continuing to find fault in plaintiff's performance, however, defendant ultimately terminated the contract by letter dated August 2, 2002.

A payment requisition prepared by plaintiff dated July 30, 2002 claimed a total of $41,668.50 worth of work had been completed under the contract. Driscoll testified, however, that this number did not reflect all of the work completed, but only the value of the work done in those areas of the building which had been entirely finished, including painting. He stated that while only approximately 20% of the painting had been completed on the job at the time the contract was terminated, a large majority of the prep work, including all the EIFS control joint repair and sealing, had been completed in areas which had not yet been painted and, thus, were not listed as complete on the requisition. In contrast, defendant sent plaintiff a letter indicating that plaintiff was owed only $10,127.27 and asked plaintiff to revise and resubmit the payment requisition in conformance with that total. Plaintiff never submitted a revised requisition. Eventually defendant hired another contractor to redo much of the work that plaintiff had performed.

Plaintiff commenced this action seeking payment under the contract and/or damages in quantum meruit. Following a nonjury trial, Supreme Court found that defendant breached the contract by wrongfully terminating plaintiff, plaintiff completed 80% of the work required by the contract at a value of $67,716 and plaintiff had, at the request of defendant, performed additional work for which plaintiff was owed $34,860. Defendant appeals.²

"On our review of a verdict after a bench trial, we independently review the weight of the evidence and may grant the judgment warranted by the record, while according due deference to the trial judge's factual findings particularly where ... they rest largely upon credibility assessments" (Martin v Fitzpatrick, 19 AD3d 954, 957 [2005]; accord Eddyville Corp. v Relyea, 35 AD3d 1063, 1064 [2006]). Here, we find ample evidence —including testimony from the contractor hired to redo the work, who found that the work which had been completed by plaintiff was not defective—to support Supreme Court's finding that defendant lacked a legal basis to terminate the contract. Indeed, on appeal, defendant does not focus on the finding that it breached the contract but, rather, on the issue of damages awarded to plaintiff, asserting first that plaintiff cannot recover more than $41,668.50—the amount reflected in plaintiff's July 2002 payment requisition. We disagree. Although the contract calls for written payment requisitions from the contractor, it does not make requisitions a prerequisite to payment in the event of breach by the owner. Furthermore, Driscoll's testimony fully supports Supreme Court's conclusion that the requisition did not reflect the total amount of work actually performed pursuant to the contract.

We do agree with defendant, however, that the contract's specific requirement for the use of written change orders precludes the award of damages beyond the contract price and any written changes thereto. "It is axiomatic that a written instrument should be enforced according to its terms" (CGM Constr. v Miller, 263 AD2d 831, 832 [1999] [citation omitted]), and a contractual clause precluding oral modifications is enforceable (see General Obligations Law § 15-301; Greater Johnstown School Dist. v Frontier Ins. Co., 252 AD2d 615, 618 [1998]). Although such clauses can be deemed waived where "the conduct of the parties demonstrates an indisputable mutual departure from the written agreement and the changes were clearly requested by [defendant] and executed by [plaintiff]" (Austin v Barber, 227 AD2d 826, 828 [1996]; see Rose v Spa Realty Assoc., 42 NY2d 338, 341 [1977]), we cannot agree that the record supports such a finding in this case.

Here, Supreme Court awarded plaintif...