MEMORANDUM AFTER TRIA

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1 -_ MEMORANDUM AFTER TRIA L SUPREME COURT - STATE OF NEW YORK Present: HON. RALPH P. FRANCO, Justice TRIAL&W, PART 13 NASSAU COUNTY XTRA PROPERTY MANAGEMENT, INC. - Plaintiff(s), -against- INDEXNo.: /98 FIRST HOME BROKERAGE CORP., and FIRST HOME PROPERTIES CORP. Defendant(s). The parties herein entered into construction agreements in May, Issues arose between them in June, 1998, resulting in a Summons & Complaint dated July 1, 1998, which was filed on October 14, Defendants interposed their answer and counterclaim dated November 25,

2 Plaintiff claims, in this action, that it is entitled to receive from Defendants, monies due and owing to it for specific work, labor and services it rendered for the benefit of Defendants, based upon renovation and construction work it allegedly performed at various premises owned by Defendants at Defendants specific request. Defendants deny that they owed Plaintiff any money as Plaintiff contends. In addition, Defendants claim in their counterclaims, that they had to expend money to complete renovation and construction of its premises because closings on their sale of the Sherman Avenue and Stanton Avenue residences were to take place near the end of June, and Plaintiff breached the agreement/contract by failing to timely complete the work it was required to perform. The premises at issue are:

3 (1) 276 Sherman Avenue, Westbury, New York. Plaintiff clai ms a balance due to it, in the amount of $9, Defendants clai m that there is no balance due and that Plaintiff owes Defendants, on their counterclaim, a balance of $6, , for monies it expended to complete the job which Plaintiff failed to complete. (2) 590 Stanton Avenue, Baldwin, New York Plaintiff clai ms a balance due to it, in the amount of $1, Defendants claim that there is no balance due and that Plaintiff owes Defendants, on their counterclaim, a balance of $9,727, for monies it expended to complete the job which Plaintiff failed to complete. 3

4 (3) 36 Brighton Road, Island Park? New York Plaintiff claims it was paid, in full, except for a balance due to it, in the amount of $250 for extras. Defendants claim that there is no balance due. (4) 1 Burnett Street? Bay Shore, New York Plaintiff claims a balance due to it, in the amount of $3,850. Defendants claim that there is no balance due. (5) 9 Leahy Street? Brentwood, New York Plaintiff makes no claim for a balance due to it. Defendants claim that the Plaintiff owes Defendants on their counterclaim, the amount of $ Based upon the foregoing, Plaintiff claims a total due to it, on wrongful termination, the amount of a total due to them, in the amount of $15, Defendants claim $16,946.41, which they contend 4

5 they were required to pay to the contractors because of Plaintiffs breach of contract in failing to perform and timely complete the jobs it was contracted to perform. Defendants further contend that Plaintiff failed to timely complete the work it was hired to perform and as a result of Plaintiffs failure to meet the deadlines and failure to show up and work at the Sherman Avenue job, Defendants terminated Plaintiff. Plaintiff further contends that it was not at fault in keeping abreast of the time deadlines in that payments and advance payments it requested were not made and complied with by the Defendants as a result of which Plaintiff could not perform the work, could not pay laborers, and could not buy materials, etc. Plaintiff also contends that Plaintiff was locked out of the job by Defendants and, therefore, could not perform as they agreed. 5

6 The facts established to the satisfaction of this Court are hereby addressed as to each location. Further, Defendants application to conform the pleadings to the proof at trial is granted.-the contract for the work to be performed at 276 Sherman Street, Westbury, New York, was at an agreed price of $ Peter Lynshue hereinafter called Lynshue, the president and sole owner of the Plaintiff corporation, credibly testified and I so find, that at this location, he removed all of the damaged sheet rock on the first and second floor, replaced studs throughout the house, replaced the roof including removal of the old roof, gutted the kitchen and the bathrooms, stripped off the shingles on the exterior and placed the debris in a dumpster. He further testified, and I so find, that he was wrongfully prevented from completing the job because the Defendants locked him out and told him that he was not to work there 6

7 anymore, and that at the time of the termination by the Defendants, the Plaintiff had had substantial materials delivered directly to the garage at the job site. Based upon my evaluation ofthe testimony, I find that at the time Plaintiff was wrongfully terminated, Plaintiff had already performed labor estimated to be worth $4,500, and supplied materials, in the sum of $8,150, making a total of $12,650, and had been paid the sum of $3,000, leaving a balance due to Plaintiff, in the. amount of $9, I determine that Plaintiff was wrongfully terminated by Defendants. Defendants contentions and testimony that it was Plaintiff who breached their contract has not persuaded this Court. Plaintiff is accordingly awarded the sum of $9,650, anddefendants counterclaim on this location seeking $6,469.41, is dismissed. 7

8 The agreement between the parties as to premises at 590 Stanton _ Avenue,. Baldwin, New York, was based upon a fax of portions of Defendants contract with its purchaswof the said premises wherein Plaintiff placed figures next to the items to be performed, and then faxed the figures back to the Defendants (Plaintiffs bxhibit #2). The original estimate to perform the labor given by the Plaintiff was $13, Plaintiff thereafter agreed to accept the reduced sum of $ _ Testimony was adduced as to the percentage of work performed at this job ranging from 60% to 80%. Here again, this Court finds that Plaintiffs termination by Defendants was a breach and was wrongful under the circumstances, however, since Plaintiff agreed to accept the sum of $8,575, I determine that he only completed 65% of the work and, therefore, was only entitled to the sum of $ I tirther find that Plaintiff received the total sum of $10,000 in two payments, ($7,000 and $3,000).

9 Defendant is entitled to a return of $4,425, and Defendant is accordingly only awarded said sum and not the sum it requested in its counterclaim on this location. In evaluating the testimony and exhibits relative to premises at 36 Brighton Road, Island, Park, New York, I find that Plaintiff credibly testified that additional windows at $250 were installed, and Plaintiff is accordingly awarded the sum of $ The parties also made a similar oral agreement for Plaintiff to perform work at premises 1 Burnett Street, Bay Shore, New York. A rider to the contraci of the sale of this property was prepared and signed by the purchasers, and also signed by Jay Gottlieb, on behalf of Defendants. A review of this contact shows that no figures were inserted relative to payments to be made to the Plaintiff for the work to be performed. (Plaintiffs Exhibit #4). Plaintiff testified that 9

10 -, he pe rf o r m ed t he w o r k and w as neve r pa i d unde r t h H ere aga i n, t h i s C ou rt fi nd s t ha t P l a i n tiff c re d i b t he l abo r and serv i ces pe rf o r m ed a t t h i s l oca ti on an en titl ed t o t he su m o f $ A s t o t he p re m ilses eahy a t S 9 tr ee t, B re n t w ood, N e w D e f endan t s t es ti m ony and p r oo f s a ti sf y t h i s C ou rt t have m e t t he ir bu r den t o s u st a i n an a w a r d o f $750. t es ti m ony w as no t r e f u t ed a t tri a l t ha t P l a i n tiff f a il ed as ag ree d, r equ iri ng D efendan t s t o expend t he su co m p l e t e t he t ask. A cco r d i ng l y P l a i n tiff is a w a r ded $13 t, he 75 su O, and m o f D efendan t s a re a w a r ded t he su m o f $ Th erefore, P l a i n tiff s ha ll have Judg m en t aga i n s t t he a m oun t o f $8, 575, t oge t he r w it h i n t e r es t o f 9 % fr o cos t s and d i s bu rse m en t s. 1 0

11 Submit Judgment in the aforesaid amount on notice within 30 days of the date of this decision. On proof of payment, the liens filed shall be vacated. This constitutes the decision and order o Dated.. p-i-ot 1. %.s.c. 11

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