Sproston v. Dias

• Decision Date: 06 September 2018
• Docket Number: 021081/2013
• Citation: Sproston v. Dias, 62 Misc.3d 1203(A), 112 N.Y.S.3d 436(Table) (N.Y. Sup. Ct. 2018)
• Parties: William SPROSTON d/b/a Better Home Services and Contracting, Plaintiff(s), v. Sarah DIAS and John Dias, Defendant(s). Sarah Dias and John Dias, Defendants/Counterclaim Plaintiffs, Thomas Gregorius, Additional Counterclaim Defendant. Sarah Dias and John Dias, Defendants/Counterclaim Plaintiffs, v. Thomas Gregorius, Additional Counterclaim Defendant.
• Court: New York Supreme Court

62 Misc.3d 1203 (A)

112 N.Y.S.3d 436 (Table)

William SPROSTON d/b/a Better Home Services and Contracting, Plaintiff(s),

v.Sarah DIAS and John Dias, Defendant(s).

Sarah Dias and John Dias, Defendants/Counterclaim Plaintiffs,

Thomas Gregorius, Additional Counterclaim Defendant.

Sarah Dias and John Dias, Defendants/CounterclaimPlaintiffs,

v.Thomas Gregorius, Additional CounterclaimDefendant.

021081/2013

Supreme Court, Suffolk County, New York.

Decided September 6, 2018

PAUL H. RETHIER, ESQ., Attorney for Plaintiff, PO BOX 307, 33 Rosedale Road, Sound Beach, NY 11789

MICHAEL J. SLEVIN, ESQ., Attorney for Defendants, 111 Great Neck Road, Ste. 305, Great Neck, NY 11021

James Hudson, J.

The matter at hand is a dispute arising from a contract to renovate a home.Both the contractor (Plaintiff) and the homeowners (Defendants) claim that the actions of the other prevented the completion of the agreed upon services.These differing positions precipitated the instant lawsuit sounding in breach of contract.The Defendants have asserted a counterclaim also claiming: breach of contract; negligence; violation of Lien Law § 39; breach of implied covenant; and violation of NY General Business Law § 349.Additionally, the Defendants have asserted a Counterclaim against Mr. Thomas Gregorious on the basis of him being a de facto partner of Plaintiff.The Parties submitted to a non-jury trial to resolve the issues presented.

Prior to our analysis of facts and discussion of the applicable law, the Court wishes to thank Messrs. Rethier and Slevin for the commendable advocacy they displayed on behalf of their respective clients.

The Court heard and reviewed the following testimony and evidence:

Mr. William Sproston testified.We found him to be in all respects, a forthright and credible witness.He stated that he was the owner of Better Homes Services and Construction (hereinafter referred to as "BHS").BHS is a construction company involved in the building and renovation of homes.BHS is not a business entity but is simply a D/B/A.

In 2012, he met the Defendants, Mr. and Ms. Dias, in regards to BHS performing renovations on their house at 11 Curtis Drive, Sound Beach, New York.They had a discussion and he gave them an estimate for the work.Subsequently, on March 6th, 2012, the parties entered into a contract whereby the Plaintiff would undertake construction work at the locus in quo in return for remuneration in the amount of $98,000.00 (Plaintiffs' "Exhibit 1").The specific work agreed to by the Plaintiff in return for this sum consisted of an expansion to the second story and a breeze way.The contract contains a provision which reads: "Any alteration or deviation from above specifications involving extra costs will be executed only upon written order, and will become an extra charge over and above the estimate."

After the contract was signed, delays were occasioned by the Defendants inability to procure building permits.They were finally issued by the Town of Brookhaven on May 29th, 2012.Once these were obtained, construction began.The Defendants, however, requested work changes entailing the installation of skylights, the replacement of a porch and various repairs to the house that were not contemplated at the time of the original contract.Indeed, the changes were so extensive that the square footage of the project went from 720 square feet to 2,000 square feet.Change Orders were agreed to by the Plaintiff and Defendants which called for additional work at an additional expense.A disagreement arose between the parties as to the expectations which the homeowners had concerning the work to be performed.In September of 2012, Ms. Dias directed Mr. Sproston to quit the worksite and to refrain from further construction.Thereafter the parties negotiated a $6,800.00 credit for various tasks which had been agreed to but not performed by the time that work ceased.The Plaintiff submitted twelve photographs (Plaintiff's "Exhibit 2") which showed the progress of the work.Mr. Sproston admitted that some of the interior work had not been completed.

Mr. Sproston claims that this resulted in the Defendants owing the Plaintiff the sum of $18,000.00 on the contract and $6,000.00 owed for the extra work requested by the Defendants.

Keith Martone also testified for the Plaintiff.A master carpenter, he was employed as a subcontractor by the Plaintiff to perform carpentry work on the project at 11 Curtis Drive, Sound Beach, New York.Mr. Martone spoke of the framing work performed over the course of three to four weeks and of difficulties which arose in connection with the "tie in" of the garage and the house proper (Transcriptp. 203, line 12).He also indicated that there was a change in the work order to include skylights on the second floor at the Defendants request (Transcriptp. 202, line 1).He also testified that the Defendants did not speak to him of any dissatisfaction with the work performed.Robert Sproston, the Plaintiff's son, also testified.He worked at the jobsite and reiterated that the construction work was performed as directed by the Defendants.

These two witnesses appeared to testify truthfully and corroborated William Sproston's averments of the work that was performed.The Defendant on the counterclaim, Mr. Gregorious, then took the stand.He described having worked at the Dias' home during the construction for a period of time and also admitted that he had been referred to by Mr. Sproston as his partner.Mr. Gregorious was deposed on October 17th, 2014 and in response to the question: "Were you ever introduced as Mr. Sproston's partner in 2012 or prior thereto?"he answered "yes."When specifically asked if he was introduced as Mr. Sproston's partner "pertaining to the Dias job"he also admitted "yes."(Trial Transcriptpp.153-154).Defendants' "Exhibit A", a copy of the Contract and Defendants' "Exhibit B," a business card for BHS with Mr. Gregorious' name printed on are also a manifestation of his connection with Mr. Sproston's business.

Ms. Sarah Dias testified for the Defense.In watching her demeanor on the stand and listening to her answers, we found her powers of observation and memory to be faulty to the point where her statements were of little utility to the Court.In describing the initial circumstances surrounding the formation of the contract, her testimony essentially paralleled that of the Plaintiff.In her litany of the events as the work progressed, however, a sharp variance in the facts was presented.Whereas Mr. Sproston indicated that he discharged his duties in workmanlike fashion, Ms. Dias stated that Mr. Sproston substituted day-laborers for skilled carpenters and the quality of construction suffered.By way of example, she indicated the front porch was poorly finished with a pillar overhanging the edge.Most importantly, Ms. Dias denies having agreed to the additional costs claimed by the Plaintiff.Her claimed understanding was that the total price for all agreed work was a total of $98,000.00.

The Defendants also called Mr. Eric Nilsson.By way of background, Mr. Nilsson described his experience as a construction contractor and as a homeowner/commercial claims adjuster.He indicated that he had performed estimates of homeowner damage claims for approximately twenty-five years.At the request of Defense counsel, Mr. Nilsson travelled to the house at 11 Curtis Drive on September 18th, 2013 and performed an inspection.This was memorialized in a written report (Defendants' "Exhibit J") which was received without objection.Mr. Nilsson stated that he performed the inspection in the company of Ms. Dias for the purpose of identifying " costs that would be associated in rectifying problems that were due to improper workmanship or other defects that were done previously by the contractor who was there (Transcript. p.339, lines 3-6).After inspecting the premises he estimated that it would cost $40,235.99 " to do the work that had not been done by the contractor and/or repair work that was defectively performed by the contractor " (Trial Transcriptp.344, lines 2-9).

On cross-examination, Mr. Nilsson admitted that he was not "aware of the scope of the work that was to be performed."(Transcriptp. 349).Although Mr. Nilsson reviewed the blueprints for the house, he was not shown the contract (Transcriptp. 350).Indeed, Mr. Nilsson stated that at the time he arrived at his estimate, he was not aware of the contractual provision which made the Defendants"responsible for the plumbing, electric, interior doors, all trim work, master bathroom floor, all kitchen work, fixtures for kitchen and bathrooms, and all painting and carpets."(Plaintiff's "Exhibit 1", item 18).Mr. Nilsson also stated that some of the items listed in his estimate of costs had already been repaired.In adding them to his estimate, Mr. Nilsson accepted the statement of Mr. Dias that he had performed the repair work himself (TranscriptP. 358, line 1-3).

Since the testimony of the Plaintiff's witness and the Defendants are at a variance, the Court must sift the differing averments and find the truth.

In a non-jury trial, it falls to the Court to determine the veracity of the proof.We begin with a review of the testimony.Determination of credibility of witnesses is viewed as the province of the Trial Judge ( Morales v. Inzerra , 98 AD3d 484, 485, 949 N.Y.S.2d 433, 436[2nd Dept.2012];Tornheim v. Blue & White Food Prod. Corp. , 88 AD3d 867, 868, 931 N.Y.S.2d 340, 341[2nd Dept.2011];seeLatora v. Ferreira , 102 AD3d 838[2nd Dept.2013] ).Judge Gazzillo eloquently opined that:

"As to the quality of any given witness, the flavor of the testimony, its quirks, the witness' bearing, mannerisms, tone and overall deportment cannot be fully captured by the cold record; the fact-finder, of course, enjoys a unique perspective for all of this, and the ability to absorb any such subtleties and nuance."( J & K Parris Const., Inc. v. Roe Ave.,

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