Knapp v. Finger Lakes N.Y., Inc.

• Docket Number: 334 CA 22-01119
• Decision Date: 09 June 2023
• Parties: TINA KNAPP AND MICHAEL KNAPP, PLAINTIFFS-APPELLANTS, v. FINGER LAKES NY, INC., DOING BUSINESS AS DIVERSIFIED CONTRACTING CO., AGGRESSIVE COMPANY, INC., NAPLES RENTAL & SUPPLY COMPANY, INC., NAPLES BARGAINS, INC., A & S MCCALL, INC., JOEL S. SMITH, INDIVIDUALLY, JULIE SMITH, INDIVIDUALLY, BRANDON SMITH, INDIVIDUALLY, AND SARA OUDERKIRK, INDIVIDUALLY, DEFENDANTS-RESPONDENTS.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 03121

TINA KNAPP AND MICHAEL KNAPP, PLAINTIFFS-APPELLANTS,
v.
FINGER LAKES NY, INC., DOING BUSINESS AS DIVERSIFIED CONTRACTING CO., AGGRESSIVE COMPANY, INC., NAPLES RENTAL & SUPPLY COMPANY, INC., NAPLES BARGAINS, INC., A & S MCCALL, INC., JOEL S. SMITH, INDIVIDUALLY, JULIE SMITH, INDIVIDUALLY, BRANDON SMITH, INDIVIDUALLY, AND SARA OUDERKIRK, INDIVIDUALLY, DEFENDANTS-RESPONDENTS.

No. 334 CA 22-01119

Supreme Court of New York, Fourth Department

June 9, 2023

TINA KNAPP, PLAINTIFF-APPELLANT PRO SE.

MICHAEL KNAPP, PLAINTIFF-APPELLANT PRO SE.

TREVETT CRISTO, P.C., ROCHESTER (ERIC M. DOLAN OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

PRESENT: SMITH, J.P., LINDLEY, CURRAN, MONTOUR, AND OGDEN, JJ.

Appeal from an order of the Supreme Court, Monroe County (J. Scott Odorisi, J.), entered January 14, 2022. The order, inter alia, granted the motion of defendants for summary judgment and dismissed the complaint.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In September 2014, plaintiffs hired defendant Finger Lakes NY, Inc., doing business as Diversified Contracting Co. (Diversified), owned by defendant Joel S. Smith, pursuant to a home improvement contract, to renovate their summer cottage. By January 2015, plaintiffs had made deposits to Diversified for the work to be performed on the renovation project in the amount of $240,530. Instead of placing plaintiffs' deposits in an escrow account, however, Diversified transferred those funds to defendant Aggressive Company, Inc. (Aggressive)-another corporation owned by Smith-which purportedly used the money for purposes unrelated to the renovation project. In October 2015, plaintiffs terminated the contract because, inter alia, Diversified had not completed work on the renovation project in a timely fashion.

Shortly thereafter, plaintiffs commenced an action to recover damages for, inter alia, breach of contract and diversion of trust funds in violation of Lien Law article 3-A (prior action). Following a jury trial, the jury rendered a verdict in favor of plaintiffs against Diversified for money damages on the breach of contract cause of action, but found that plaintiffs sustained no damages as a result of the admitted violation of the Lien Law. A judgment was entered on the verdict. Plaintiffs moved pursuant to CPLR 4404 to set aside the verdict with respect to the Lien Law cause of action and for, inter alia, judgment in their favor on that cause of action. Supreme Court denied the motion, and we dismissed plaintiffs' ensuing appeal (Knapp v Finger Lakes NY, Inc., 184 A.D.3d 335, 337 [4th Dept 2020], lv dismissed 36 N.Y.3d 963 [2021]).

In September 2020, plaintiffs commenced this action to recover damages for, inter alia, fraudulent conveyances made by defendants when they...