S.J. Kula, Inc. v. Carrier

• Decision Date: 14 June 2013
• Citation: S.J. Kula, Inc. v. Carrier, 107 A.D.3d 1541, 967 N.Y.S.2d 804, 2013 N.Y. Slip Op. 4474 (N.Y. App. Div. 2013)
• Parties: S.J. KULA, INC., Plaintiff–Respondent, v. Kevin CARRIER and Shelly Carrier, doing business as Carrier Salvage and Recycling, LLC, Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 1541

967 N.Y.S.2d 804

2013 N.Y. Slip Op. 04474

S.J. KULA, INC., Plaintiff–Respondent,

v.Kevin CARRIER and Shelly Carrier, doing business as Carrier Salvage and Recycling, LLC, Defendants–Appellants.

Supreme Court, Appellate Division, Fourth Department, New York.

June 14, 2013.

Hall and Karz, Canandaigua (Peter Rolph of Counsel), for Defendants–Appellants.

Merkel and Merkel, Rochester (David A. Merkel of Counsel), for Plaintiff–Respondent.

PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND WHALEN, JJ.

MEMORANDUM:

Plaintiff commenced this action for, inter alia, quantum meruit, alleging that defendants owed a balance of $31,720 based on their failure to pay plaintiff for the construction of a horseshoe driveway at defendants' place of business. Defendant Kevin Carrier (Kevin) asserted a counterclaim seeking damages for plaintiff's repossession of a “lowboy” semitrailer, which plaintiff had agreed to sell to Kevin, and for which plaintiff had accepted $7,000 as partial payment. After a nonjury trial, Supreme Court granted plaintiff judgment on its cause of action for quantum meruit in the amount of $31,720, less an offset of $7,255 for damages awarded to Kevin against plaintiff on his counterclaim, for total damages in the amount of $24,465. The court also awarded plaintiff statutory interest of $7,339.50 on those damages from the period of August 2, 2008, i.e., the date of plaintiff's invoice for work on the driveway, and thus entered judgment against defendants in the amount of $31,804.50.

We reject defendants' contention that the amended complaint failed to place defendants on notice of plaintiff's claim for damages on the theory of quantum meruit ( see Clark v. Torian, 214 A.D.2d 938, 938, 625 N.Y.S.2d 370;see alsoCPLR 3013, 3026). We also conclude that there is no merit to defendants' contention that plaintiff failed to prove at trial the “ good faith” element of quantum meruit ( see generally Pulver Roofing Co., Inc. v. SBLM Architects, P.C., 65 A.D.3d 826, 827, 884 N.Y.S.2d 802).

We agree with defendants, however, that there is no fair interpretation of the evidence supporting the court's conclusion that plaintiff is entitled to $24,465 in damages ( cf. Matter of City of Syracuse Indus. Dev. Agency [Alterm, Inc.], 20 A.D.3d 168, 170, 796 N.Y.S.2d 503). Plaintiff advanced a claim for approximately $30,000 based largely on the self-serving testimony of plaintiff's representative as to the extent and value of the project. Although plaintiff submitted in evidence an invoice to defendants in support of its claim, we note that the invoice contains no meaningful detail; incorrectly totals the amount due for the work, resulting in a mathematical error, which the court appears not to have acknowledged; and was not prepared contemporaneously with the completion of the project, but was tendered to defendants approximately seven months after the work was finished. Moreover, plaintiff failed to submit any evidence—such as worksheets, receipts, or other documentation—supporting the charges listed in the invoice.

The testimony of plaintiff's representative with respect to the extent and value of the project was also contradicted by defendants' witnesses at trial. One of plaintiff's former employees who testified on behalf of defendants undermined significant portions of the testimony of plaintiff's representative with respect to the extent of the project. With respect to value, that employee, drawing on his experience in gravel driveway installation, also estimated the price of the project at approximately $8,000. A former employee of Kevin, who had estimated “over a thousand” similar gravel driveway projects, likewise testified that a reasonable price for plaintiff's services in constructing defendants' driveway would be between $6,500 and $8,000. In addition, an excavation and driveway installationexpert who testified for def...