Premier Land Development, Inc. v. Kishfy, 043020 RISUP, PC-2012-0341

Docket Nº:C.A. PC-2012-0341, PM-2012-1218
Opinion Judge:TAFT-CARTER, J.
Party Name:PREMIER LAND DEVELOPMENT, INC. v. JOSEPH KISHFY and PAULA KISHFY BEL-AIR TILE CO., INC.; CONTINENTAL ENGINEERING & SERVICE CO., INC.; DESIMONE ELECTRIC, INC.; MORAN HOME IMPROVEMENT; VALLEY PLUMBING & HEATING, LLC v. JOSEPH KISHFY
Attorney:For Plaintiff: John O. Mancini, Esq.; Thomas P. Carter, Esq. For Defendant: Barry J. Kusinitz, Esq.; Joseph Raheb, Esq.
Case Date:April 30, 2020
Court:Superior Court of Rhode Island
 
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PREMIER LAND DEVELOPMENT, INC.

v.

JOSEPH KISHFY and PAULA KISHFY

BEL-AIR TILE CO., INC.; CONTINENTAL ENGINEERING & SERVICE CO., INC.; DESIMONE ELECTRIC, INC.; MORAN HOME IMPROVEMENT; VALLEY PLUMBING & HEATING, LLC

v.

JOSEPH KISHFY

C.A. Nos. PC-2012-0341, PM-2012-1218

Superior Court of Rhode Island, Providence

April 30, 2020

For Plaintiff: John O. Mancini, Esq.; Thomas P. Carter, Esq.

For Defendant: Barry J. Kusinitz, Esq.; Joseph Raheb, Esq.

DECISION

TAFT-CARTER, J.

This matter is before the Court for decision following a jury-waived trial on consolidated complaints brought against Joseph Kishfy (Mr. Kishfy) and Paula Kishfy (Mrs. Kishfy) (collectively, Defendants) by Premier Land Development, Inc. (Premier or Plaintiff) (PC-2012-0341); and, against Mr. Kishfy (Defendant) by Bel-Air Tile Co., Inc. (Bel-Air); Continental Engineering & Service Co., Inc. (Continental); DeSimone Electric, Inc. (DeSimone); Moran Home Improvement (Moran); and Valley Plumbing & Heating, LLC (Valley) (collectively, Plaintiffs) (PM-2012-1218). The action was tried in October 2018. Jurisdiction is pursuant to G.L. 1956 § 8-2-14 and Super. R. Civ. P. 52(a).

I

Findings of Fact

This Court has reviewed all of the evidence presented during the trial. The Court now makes the following findings of fact.

Mr. Kishfy is the owner of 15 Paddock Drive, Lincoln, Rhode Island (the property). He has lived at the property since December 2011 with his wife, Mrs. Kishfy. When he purchased the property in August 2011 it was being renovated by David Corsetti (Mr. Corsetti) of Premier.

Prior to his purchase, Mr. Kishfy entered into a Purchase and Sales Agreement with the owner Robert Lanni (Mr. Lanni), to buy the property "as is" for $630, 000. (Purchase and Sales Agreement Ex. 1.) All contingencies and inspections were waived except for the radon test. See id.

A real estate closing was held on August 17, 2011, at which time the property was conveyed to Mr. Kishfy. Pursuant to the HUD Settlement Sheet, the amount of $454, 847.33 was tendered to Mr. Lanni. (HUD Ex. 3.) The HUD indicated that the remaining balance of the sale price, $158, 002.40, was to be paid at a later time. Id.

Mr. Kishfy also entered into an "Amendment to Purchase and Sales/Construction Agreement" (Construction Contract) on August 17, 2011 with Mr. Lanni and Mr. Corsetti on behalf of Premier. (Construction Contract Ex. 2.) Mrs. Kishfy was not a party to the Construction Contract. Id. Under the Construction Contract, Mr. Kishfy agreed to pay the sum of $150, 000 in monthly installments for the labor and materials to complete the renovations at the property. Id. The work was to be completed on or before October 28, 2011. Id.

The Construction Contract contained two (2) exhibits. Id. The "Proposal for 15 Paddock Drive Lincoln RI," as well as the scope of work were contained in Exhibit A of the Construction Contract. Id. Specifically, Premier was to install the following: one kitchen that included crown moldings, countertops, faucets, and a copper hood; installation of floor tile in the kitchen, mudroom, half bath, and all second floor bathrooms; installation of metal deck outside cabana ready to receive finish flooring; support basement bearing wall per engineering specs; paint as needed; and make sure that mechanical and electrical issues were corrected. Id.

Also attached to the Construction Contract was Exhibit B. Id. This exhibit set forth the amounts allocated for particular items to cover the cost for labor and materials to complete the work at the property. Id. Mr. Kishfy testified to his understanding of the allowances. Furthermore, he understood that he would receive a credit for any unused amount or be responsible to pay the difference in the event that he spent a greater amount for the renovation work. Exhibit B listed the items included for each item and specifically indicated that: "The allowances listed below are in fact allowances; in the event the amount spent is lower than the allowance the Buyer shall receive a credit for the unused amount. In the event the amount spent is greater, the Buyer shall pay the difference."

"Labor to install all (kitchen, vanities, plumbing and hardware) is included in the selling price of the property ($630, 000.00)." Id.

Mr. Kishfy testified that he understood at the time he executed the Construction Contract that Mr. Corsetti and his entity Premier would perform the renovations. Mr. Kishfy tendered a check to Premier in the amount of $40, 000 as a partial installment payment in August 2011. (Pl.'s Ex. 4.) A handwritten notation on the check indicated it was issued as "1st draw to David Corsetti." Id. In November 2011, a second check in the amount of $11, 000 was disbursed to Mr. Corsetti. (Pl.'s Ex. 5.) There were no other checks issued to either Premier or Mr. Corsetti by Mr. Kishfy. Mr. Kishfy did however make a direct payment in the amount of $21, 356 to Uxbridge Cabinets.

In addition to his duty to pay Premier under the contract, Mr. Kishfy undertook the responsibility to select or provide the materials to be used to complete the project in a timely manner. From the inception of the project, Mr. Kishfy's modification in the scope of work was substantial. These upgrades and changes in the materials were implemented at Mr. Kishfy's request through October 2011. For instance, he redesigned the kitchen, relocated the cabinetry, and requested the installation of an inlaid mahogany floor, as well as a custom wood stove hood. These modifications were substantial and amounted to material changes to the scope of work contemplated pursuant to the terms of the Construction Contract.

Mr. Kishfy acknowledged the breadth of the additional work and testified that the project upgrades were excessive. There was no dispute that his modifications resulted in exceeding the electrical, tile, and plumbing allowances, creating more work and expense for the contractor.

The credible evidence establishes that Mr. Kishfy's alterations resulted not only in additional cost, but also in delay. Contractor after contractor credibly testified at trial with respect to the increased scope of work, cost, delay, and lack of payment. This substantial increase in the scope of work had a ripple effect resulting in the delay in work and non-payment of subcontractors. For instance, Moran was hired to perform carpentry and exterior work. The work performed included the changes to the originally designed kitchen at the property. This work was performed on a time and materials basis, and all work performed was necessary to accommodate the changes that Mr. Kishfy requested to complete the kitchen. This expanded endeavor was valid and justified because the clear evidence established indicated that the kitchen was substantially completed in August 2017.

Another example concerned excavation work for the two patio foundations. The purpose of the foundation was to install an exterior deck and metal deck near the cabana by the pool. Mr. Kishfy requested that the metal deck not be installed as his preference was to use pavers. The additional work performed by Moran totaled $24, 516. (Pl.'s Ex. 6.)

Continental performed the HVAC work at the property. Mr. Richard DiRocco (Mr. DiRocco), its principal, testified credibly that he performed the work required to implement a hydro-air system on the second floor and other work necessary for the system, as well as replaced registers and grills throughout the house. Mr. DiRocco further testified that he provided three invoices to Premier and that Continental was owed the sum of $7, 154.67. (Continental Invoice Ex. 8.)

Bel-Air also performed tile work at the property and it, too, was the victim of nonpayment for the materials and services rendered. The work performed by Bel-Air was beyond the initial scope of work. Some of the work included the installation of specialty tiles requiring custom installation. The scope of the tile work increased substantially with Mr. Kishfy's request to tile the shower in both bathrooms and install wall tiles in the Jack and Jill bathroom. On more than one occasion the tiles were not on site, which required him to return to the job site. In fact, he did not return to complete the project because the materials were not on site. Vincent Diamante credibly testified on behalf of Bel-Air that the original outstanding balance due totaled $18, 150.52. (Pl.'s Ex. 10.) This amount was reduced, however, to $11, 589.52.

Christopher LaValley testified on behalf of Valley. LaValley performed plumbing work at the project pursuant to Exhibit A of the Construction Contract. This work included the installation of a whirlpool, toilets, vanities, and plumbing for the master bathroom. He credibly testified that Valley was owed $11, 825. (Pl.'s Ex. 7.)

DeSimone also worked on the project and was owed $13, 942. (Pl.'s Ex. 9.) DeSimone purchased and installed recessed lights, dimmers, relays for a chandelier, plugs and switches throughout the house, and performed general electric work.

Id.

As of November 2011, the entire amount paid by Mr. Kishfy to Premier totaled $51, 000 for the work performed at the property. Furthermore, no...

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