Walter Boss, Inc. v. Cleary, INDEX NO.: 013643/2008

Citation2018 NY Slip Op 33194 (U)
Decision Date01 November 2018
Docket NumberINDEX NO.: 013643/2008
PartiesWALTER BOSS, INC. v. JAY CLEARY, WALTER KOHLER and EDWARD JONES
CourtUnited States State Supreme Court (New York)

COPY

Memorandum Decision After Trial

PRESENT: HON. JAMES HUDSON Acting Justice of the Supreme Court

SHLIMBAUM & SHLIMBAUM, ESQS.

Attorney for Defendant Jay Geary

320 Carleton Avenue, Suite 2500

Central Islip, NY 11722

PATRICIA BYRNE BLAIR, ESQ.

For Defendant Edward Jones and

Walter Kohler

9B Montauk Highway

Blue Point, NY 11715

J. LEE SNEAD, ESQ.

Attorney for Plaintiff

144 So. Country Road, PO Box 489

Bellport, NY11713

In the World of Commerce, Contract is an engine mightier than any machine. It allows combinations of capital, labor, chattels and realty to ensure the profit of individual and collective interest. When properly applied, the Common Law of Contracts regulates business relationships with the consistency of a metronome. All directed, ideally, for the betterment of humanity.

The matter at hand arises from the construction of a house. Sounding in law and equity, the Plaintiff Corporation has filed a complaint asserting five causes of action against the Defendants: (1) foreclosure of a mechanics lien; (2) breach of contract; (3) unjust enrichment (4) quantum meruit; and (5) an account stated. The differing averments of the parties mandated a trial to resolve the issues of fact.

Prior to the Court's discussion of the facts and law, we would be remiss if the Counsel who appeared herein, Ms. Schlimbaum, Ms. Blair and Mr. Snead were not thanked for their efforts. In preparation they were thorough and exact. At trial, the thoughtful insight of their questioning was allied to mutual courtesy. Finally, their Post Trial Briefs are notable for their sagacity. Such advocates honor their clients, this Court and thus the law itself.

Plaintiff called the following witnesses during the course of its direct case: Walter Boss, Walter Kohler, Jay Geary, and Edward Jones.

The Defendants called Edward Jones, Michele Quatrale and Arthur Nelsen. Additionally, Walter Kohler was recalled to the stand.

Initially, the Court will recount the testimony. The Plaintiff first called Mr. Walter Boss, the principal of the Plaintiff Corporation, a construction company,

Mr. Walter Boss stated that he was contacted by the Defendant Mr. Walter Kohler in September of 2006. The purpose of their discussion was Mr. Kohler's request to retain Boss Inc. to replace the pilings of the foundation for a house at Eleven Ocean Walk, Fire Island Pines, Suffolk County, New York. Mr. Boss informed Mr. Kohler that approximately ten pilings needed to be replaced for a total cost of $7200.00. Mr. Kohler agreed to this proposal and gave Plaintiff a deposit of $6,000.00.

The work commenced but difficulties soon arose. Mr. Boss discovered that other parts of the house had deteriorated and that a prior modification of the structure had occurred without the obtaining of a building permit. A certificate of occupancy for the altered building was also lacking.

Mr. Boss met again with Mr. Kohler and negotiated to extensively rebuild Eleven Ocean Walk. Mr. Boss' testimony indicates that Mr. Kohler claimed to have authority from his partners Jay Geary, Edward Jones and John O'Connor for the additional work. (Trial Transcript 12/5/2016, pp.18-21, 23, 59). Mr. Boss, however, admitted that there is no signed written contract.

Mr. Kohler asked Mr. Boss to design and rebuild the home so that it would be ready for a summer rental. This required a completion date of May 2007. Mr. Boss agreed to this. (Trial Transcript 12/5/2016, pp.24-25).

Mr. Boss indicated that he met very frequently with Mr. Kohler. This interaction is manifested in a drawing Mr. Kohler gave Mr. Boss to graphically express his wishes for the property (Plaintiff's Exhibit 4) as well as notes for the project (Plaintiff's Exhibit 2).

Construction plans prepared by the "Down to the Last Detail" design company were drawn up. An initial plan was prepared on 01/27/ 2007 (Plaintiff's Exhibit 54) and the final plan was in Mr. Boss' hands on 03/21/2007 (Plaintiff's Exhibit 55). Mr. Kohler worked with him in specifying changes to the property during this time period.

After receiving the "go ahead" from Mr. Kohler, Mr. Boss began the reconstruction in earnest. On 02/16, 2007 Mr. Boss handed Mr. Kohler a building estimate of $225.00 per sq. ft. for the 1st floor, $200.00 per sq. ft. for the 2nd floor and $25.00 per sq. ft. for the roof deck. A total estimated cost of $498,680.00. was projected. (Trial Transcript 12/05/2016, pp.70-79, Plaintiff's Exhibit 7).

The work proceeded on the house with Mr. Boss and Mr. Kohler meeting on a regular basis. A 03/26/ 2007 memorial (referred to by the witness as a "Punch List") for work was prepared and delivered to Mr. Kohler (Plaintiff's Exhibit 8). Items were removed from the Contract with an adjustment for price (Plaintiff's Exhibit 9).

On 04/07/2007 another invoice was prepared and given to Mr. Kohler. It reflected an agreed upon price of $501,180.00 for work and materials. (Plaintiff's Exhibit 10). Items one through six on Exhibit 10 had been completed which represented $197,100.00 in services accomplished as of that date. (Trial Transcript 12/05/2016, p.102).

Discussions between Mr. Boss and Mr. Kohler resulted in further work changes. There was an increase in price for the roof deck and rails, wood floors, temporary interior stairs and excavation. There was a decrease reflected for the bathroom. This was memorialized in an estimate (Plaintiff's Exhibit 11). Further discussions ensued concerning a silestone countertop. A Contract was prepared by Mr. Boss on or about 04/29/2007 (Exhibit 12) and sent to Mr. Kohler. The total price for the work and materials was to be $507,995.00.

Mr. Boss stated that the final invoice for the work were prepared and/or dated 08/02/2007. (Plaintiff's Exhibits 17, 18 and 19). Plaintiff's Exhibit 19 notes that it was a final invoice and was for work at Eleven Ocean Walk. Mr. Boss prepared a record of payments made on account (Plaintiffs' Exhibit 23) which totaled $185,000.00. This left an unpaid balance of $323,095.00. After giving a copy to Mr. Kohler by hand, Mr. Boss stated he handed an updated copy of the 08/02/2007 invoice to Mr. Cleary on the Fire Island Pines ferry dock on 08/09/2007. Exhibit 19 stated a total price $508,095.00 which did not reflect earlier payments to Mr. Boss (Trial Transcript 12/5/2016, pp.150-157).

After the invoice (Exhibit 19) was delivered on August 9th, 2007, a door ordered for Eleven Ocean Walk arrived. Mr. Boss indicated that he advanced the sum of $2,060.57 for it, Mr. Kohler directed that it be delivered it to the Shell Walk property jointly owned by Mr. Kohler and Mr. Jones. Mr. Boss then added the door's cost to the Invoice (Exhibit 21). It brought the total to $510,155.57. (Trial Transcript 12/6/2016, pp. 162-163; Trial Transcript 3/29/2017, p.78).

When payment was not forthcoming, Mr. Boss sent demand for same by certified mail (Plaintiff's Exhibit 22). This stated a total project cost of $517,355.57 less payments made of $191,000.00. The grand total due was now $326,355.57. (Trial Transcript 12/6/2016, pp.164-168).

Mr. Boss said that he had numerous phone calls with Mr. Cleary during August and September 2007. During those conversations, Mr. Cleary acknowledged transferring money into a joint bank account in order to make a partial payment of $150,000.00. Most specifically, Mr. Cleary said he had transferred money to Mr. Kohler and was surprised Plaintiff hadn't been paid in full (Trial Transcript 3/29/17 pp.122-124). Mr. Boss also had email communications with the Defendants regarding when he would receive the $150,000.00 payment (Plaintiff's Exhibit 29). (Trial Transcript 4/26/2017, pp.253-258).

During Mr. Boss' testimony, the Plaintiff submitted invoices for materials, supplies, and equipment which Mr. Boss claims was used for installation at Eleven Ocean Walk (Plaintiff's Exhibits 34 through 52). Mr. Boss testified as to the authenticity of each invoice and that he had paid for them. They had been used by him to determine cost estimates for the project (Trial Transcript 2/23/17, pp.5-95, and pp.122-146; 3/29/17, pp.1-80). Copies of checks indicating payment were introduced (Exhibit 53). (Trial Transcript 3/29/17, pp.80-95).

Mr. Boss also proffered a DVD (Plaintiff's Exhibit 57), (filmed July 31st 2014) of Eleven Ocean Walk. Mr. Boss narrated what work he performed during the playing of same (Trial Transcript 2/23/17, pp.96-114).

The Defendants point out certain portions of Mr. Boss' testimony.

A subcontractor, Arthur Nelsen Electricians Inc., had performed work at the locus in quo. Mr. Boss stated that he had paid its bill.

"Q. Mr. Boss, did you pay the Arthur Nelson (sic) bill, the balance of it?
A. Yes.
Q. Was that in one check or more than one check?
A. Multiple checks.
Q. And do you have copies of those checks?
A. I don't know.
Q. And I'm going to direct your attention back to that last page of Plaintiff s Exhibit 34. What was the total amount that you paid Arthur Nelsen, licensed electrician?
A. I'd have to refer to something that did his billing. I have no idea.
Q. But you're sure you paid it in full?
A. Yes. (Trial Testimony, March 30, 2017 at page 41, line 23 to page 42, line 11).

Later in his testimony, Mr. Boss reiterated this position.

"Q. Mr. Boss, it's your testimony that you paid the electrician in full, is that correct?
A. Yes.
Q. Do you have any proof of paying the electrician in full?
A. There was no lien on the property. That's my best way to respond to you.
Q. Mr. Boss, do you have any checks to the electrician reflecting payment for work the electrician Arthur Nelsen did at Eleven Ocean Walk?
A. There are some checks that show some payment.
Q. Where are those checks, Mr. Boss?
A. They're probably not in the...I don't know where they are because I don't know.
Q. Do you have a receipt from Mr. Nelsen or Arthur Nelsen
...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT