DHE Homes, Ltd. v. Jamnik

• Decision Date: 13 September 2011
• Docket Number: INDEX NO: 8542-2007
• Citation: DHE Homes, Ltd. v. Jamnik, 2011 NY Slip Op 32416, INDEX NO: 8542-2007 (N.Y. Sup. Ct. Sep 13, 2011)
• Parties: DHE HOMES, LTD., and Daniel Horowitz, individually, Plaintiff, v. ALAN JAMNIK, ROCHELLE JAMNIK, and "JOHN DOE #1" through "JOHN DOE #10", said names being fictitious and unknown to Plaintiff, the persons or parties intended being the person or parties, if any, having or claiming an interest in or lien upon the premises described in the Verified Complaint, Defendants.
• Court: New York Supreme Court

2011 NY Slip Op 32416

DHE HOMES, LTD., and Daniel Horowitz, individually, Plaintiff,

v. ALAN JAMNIK, ROCHELLE JAMNIK,and "JOHN DOE #1" through "JOHN DOE #10", saidnames being fictitious and unknown to Plaintiff, the personsor parties intended being the person or parties, ifany, having or claiming an interest in or lien upon the premisesdescribed in the Verified Complaint, Defendants.

INDEX NO: 8542-2007

SUPREME COURT - STATE OF NEW YORK

DATED: September 6, 2011

DATED: September 13, 2011

Present:

HON. ARTHUR M. DIAMOND

Justice Supreme Court

TRIAL PART: 14

NASSAU COUNTY

DECISION AFTER TRIAL

This non jury contract action was tried before this court on June 6, 7, 8, 13 and 14, 2011. The plaintiffs, DHE Homes Ltd. and Daniel Horowizt, were represented by counsel and the defendant, Alan Jamnik represented himself. Defendant is self employed in a family retail business. He has an undergraduate degree, a Masters degree and a juris doctorate but he never practiced law.

On May 21, 2003 the parties entered into a written contract requiring plaintiff, DHE Homes Ltd. to demolish an existing home, remove the foundation of that existing home, remove an existing tennis court and build a new approximately 5,000 square foot home with an unfinished basement for the defendant. The written agreement (Exh 1) is a standard form Construction Contract. In relevant part, paragraph 15 establishes the payment schedule. The total due upon completion would be $435,000. Paragraph 8 described the agreed upon schedule with construction to be completed 12 months after beginning but in any event no later than fifteen months after commencement. If the job continued beyond fifteen months the owner would deduct $2,500 per month from the contract price with certain exceptions. One of the exceptions states that the penalty would not apply if the workstoppage was the result of labor or material shortages which are unavoidable with the exercise of reasonable diligence. The parties eventually entered into three separate writings which were admitted into evidence concerning the work to be done by plaintiff. They are the above referenced original contract (Exh 3) dated May 21, 2003. They executed an "Addendum to Contract" (Exh 4) apparently mis-dated May 19, 2003. On May 21, 2003 they executed a hand written letter wherein the defendant agreed to pay $ 150,000 in addition to the $435,000 contract price bringing the agreed upon total to $585,000 (Exh 6). And finally there is the "Agreement Between DHE Homes and Alan Jamnik" dated February 16, 2005.

Prior to entering into the contract the plaintiff, in order to properly bid the job, reviewed a set of architectural drawings done by Jamnik's architect, Mr. Gregory Andreas. Prior to signing the contract plaintiff immediately expressed concerns about the structural elements of the drawings. Specifically, he testified that he told the defendant that he believed the structural components were inadequate and that the home could not be built this way. Plaintiff wrote a letter to defendant explaining this and awaited a response When the architect did not respond to the plaintiff's letter, plaintiff, with no objection from the defendant, hired a structural engineer to review the existing plans. The engineer did so, and on August 28, 2003 he was retained by plaintiff to prepare new drawings to address the structural issues. (Exh 72). Again, the defendant did not object. Although demolition had started in June or July soon after the contract signing plaintiff testified that these new drawings and specifications had the effect of significantly stalling the beginning or continuing of the framing of the house. For example, certain steel had to be fabricated, not merely purchased. In addition to this, the plaintiff testified that once the work was begun the plaintiff made many changes to the original plan and specifications that also greatly slowed the progress of the job. He testified, for example, that after the basement had been framed the defendant decided to add a back staircase to the house which required the ripping up of the floor, a revision of bathroom layouts, change in plumbing and windows. He said this was but one example of many. He introduced into evidence approximately 50 "change orders" into evidence. He described the procedure for these to be that when the defendant wanted to make a change in the plans or the specifications he would give plaintiff a drawing; they would meet to discuss it; plaintiff would research the price and produce a work/change order based on their conversation. He testified that the defendant would rarely signthem but the work would not be done unless plaintiff had received verbal approval. Plaintiff testified that he believed that the defendant paid for all but a very few of the changes. Those that were not paid were included in the lien placed against the property.

The defendant moved into the house in November of 2004 and the certificate of occupancy was granted by the Town of Oyster Bay on November 12, 2004. The plaintiff testified that at the time the defendant moved in plaintiff was owed final payment on the project. Payment was not forthcoming. Rather, he testified, the defendant submitted to him several "punch lists" of items that defendant wanted changed or fixed prior to making payment. The plaintiff testified that he became frustrated with the ever changing demands of defendant and in February of 2005 demanded a final list. (Exh 64). According to the plaintiff, at this time there was owed about $50,000 on the balance of the original contract plus thousands of dollars for additional labor and increased costs to plaintiff as a result of the amount of time the project took. This was mostly reflected in the increased costs in raw materials during this period. In particular plaintiff cited that the cost of sheet rock, lumber and concrete increased drastically during the construction. The defendant had unresolved complaints as well, including wanting the attic finished which the plaintiff refused to do. In an attempt to resolve their differences, the plaintiff testified that he offered a resolution to their stalemate which was embodied in Exh. 65. This agreement states that the parties were each giving up certain claims by executing the agreement. The contractor was to supply and install all materials necessary to complete a room located above the owner's garage and shingle and re-roof a small outside storage shed that was in disrepair. The owner waived any right to have the attic sheetrocked and any claim for monies as a result of late delivery of the house. The agreement further acknowledges that the contractor is owed $50,870.00 for the balance of the original contract and payment will be made as follows: $ 15,000 upon the signing of Exh 65, $ 10,000 upon completion of the room above the garage; and the remainder "in accordance with the terms of the original contract."

According to the plaintiff, when he completed the room above the garage plaintiff asked for payment pursuant to the agreement. The defendant refused stating that the shingles that he used for the shed were not equal to those used on the house. At this point, the plaintiff stopped working and filed his lien and then the law suit. The complaint demands payment in the amount of $133,724.00 which was arrived at as follows: $35,870 for the balance on the original contract plus approximately$100,000 in costs of labor and materials for work performed resulting from changes to the original plan or specifications. These items are specifically identified in Exh 95 (Itemized statement of lien).

The defendants counterclaimed for breach of contract claiming that plaintiffs failed to perform, constructively abandoned the work, failed to employ suitable materials, failed to hire and supervise qualified personnel and failed to construct the home in accordance with the contract. They claim damages in the amount of $112,000 having "incurred and expect to incur damages to complete, correct, repair or replace the work." Defendants additionally claimed that the time of delivery clause in the contract was breached which called for a $2,500 per month penalty if the work was not completed within 15 months "for any reason."

In his direct examination, the defendant offered testimony in support of his claim. He contradicted the plaintiff on several issues. He agreed that plaintiff expressed many concerns about the drawings. Defendant testified that he was surprised concerning the engineer's report but he never got a second opinion and never questioned his own architect about it. He denied being told that it was going to seriously slow the project or that steel was going to have be made for it. Defendant began by showing a video, made approximately two years after he moved in, purporting to show areas of damage to his home as a result of the plaintiff's work. Among the most significant complaints are summarized as follows:

• liner for drainage system not installed leading to water in basement

• stains on carpeting beneath window

• A/C units are Lenox, not Carrier as per contract

• A/C units sit on fiberglass, not concrete pads as per contract

• ladder missing from second window

• insulation foam is exposed

• basement expander tank flooded; additional unit needed

• shower makes noise heard beneath it; waste lines not wrapped

• mud room not constructed

• fireplace tiles not straight

• window on main floor does not open

• second floor shower does not work

• house water pressure not sufficient

• room above garage cold

• attic- never finished

• bathroom tiles not sealed

• basement storage room never build

• attic not sheet rocked or insulated

• finished room above garage is cold

• shelving in closet and garage were not done

The defendant has not expended any money for repairs or completion of the allegedly incomplete work.

In addition to his own testimony, defendant attempted to call as an expert witness Mr. Robert Dykeman, a self employed commercial contractor....