| Ainetchi v 500 W. End LLC |
| 2008 NY Slip Op 04436 [51 AD3d 513] |
| May 15, 2008 |
| Appellate Division, First Department |
| Isaac Ainetchi et al., Respondents-Appellants, v 500 WestEnd LLC, Appellant-Respondent. |
—[*1] Connors and Sullivan, P.C., Brooklyn (Edward R. Dorney of counsel), forrespondents-appellants.
Judgment, Supreme Court, New York County (Debra A. James, J.), entered September 5,2006, after a nonjury trial, inter alia, awarding plaintiffs the mechanical room, legal fees anddisbursements to the extent incurred in prosecuting their first cause of action, and a credit of$24,902.50 on their reimbursement and corrective claims, and awarding defendant $190,329.87plus interest, unanimously modified, on the law, the facts and in the exercise of discretion, to theextent of staying enforcement of the judgment and remanding the matter for further proceedingsconsistent herewith, and otherwise affirmed, without costs.
The trial court correctly found that defendant substantially performed the constructioncontract. In arguing otherwise, plaintiffs incorrectly include amounts that they received or claimthey should have received as reimbursement for their own expenditures on the construction;however, since this was work that was actually performed, the only issue is who was responsiblefor payment. Plaintiffs also incorrectly include amounts that they claim were awarded to them inthe body of the order underlying the judgment but were erroneously omitted from the conclusionof that order and the final judgment; however, it is clear that the paragraphs appearing to awardplaintiffs these additional amounts were erroneously left in the body of the order and were meantto be taken out.
In any event, there is no merit to plaintiffs' claims of nonperformance, which involve threeitems—allegedly improper construction of the interior staircase and purported damages tothe penthouse floors and terrace—for which plaintiffs claim a right to reimbursement forsums paid by them to contractors. Concerning the staircase, plaintiffs rely on the June 21, 2001or "BKS" plans and the as-built drawings, asserting that the stairs were not built as they appear inthe plans, and that they never agreed in writing to a modification of the plans as required by theparties' agreements. However, the record shows that the parties regularly modified the plans andplaintiffs' payment schedules without any writing whatsoever (see Rose v Spa RealtyAssoc., 42 NY2d 338, 343-344 [1977]), and no basis exists to disturb the trial court'sfindings crediting the testimony of defendant's witness that the modification to the staircase wasdiscussed with and agreed to by plaintiff Ainetchi, testimony supported by Ainetchi's dailypresence at the job site and the fact that the changes to the staircase were readily apparent (seeMatter of Albrecht Chem. Co. [Anderson Trading Corp.], 298 NY 437, 440 [1949]).
Concerning the flooring, no basis exists to disturb the trial court's findings creditingdefendant's expert (see Watts v State ofNew York, 25 AD3d 324 [2006]), who testified that the minor "cupping" was notcaused by the lack of a vapor barrier but was a natural consequence of the width of the wood, towhich plaintiffs had agreed. Concerning the terrace, the record shows that the parties agreed tochange the initial plans by expanding the scope of the terrace. Defendant's witness crediblytestified to conversations with Ainetchi regarding these changes, and Ainetchi's direct payment tothe vendors for the additional materials required by the changes substantiates his agreement toassume this cost. Ainetchi's testimony that he paid these vendors only because they threatenednot to do the work unless they were paid by him was rendered incredible by invoices showingthat he paid the contractors after the work was completed.
The trial court properly precluded plaintiffs' expert's report as to the cost of repairs, andcertain testimony regarding these costs, as they were based largely on unidentified subcontractors'quotes unsupported by any evidence of reliability (see Hambsch v New York City Tr.Auth., 63 NY2d 723, 725-726 [1984]; cf. Sigue v Chemical Bank, 284 AD2d 246,247 [2001]). While some of the subcontractors later testified, arguably satisfying the test inHambsch, there is no indication that plaintiffs sought to have the court reconsider itsruling after this testimony. In any event, any error was harmless as plaintiffs' claims with respectto the staircase and the terrace were, as noted, properly rejected for reasons having nothing to dowith the contractors' estimates, and, with respect to the flooring, the court heard the testimony ofplaintiffs' contractor but properly rejected it on credibility grounds.
We modify, however, to vacate that portion of the court's verdict and judgment awarding themechanical room to plaintiffs, the purchasers of Penthouse West. There is conflicting evidence inthe record regarding whether the mechanical room at issue, designated "W-212" on the primaryarchitectural plans, belongs to Penthouse West or Penthouse East.
Plaintiffs argue that because the relevant purchase agreement identifies Penthouse West asthe unit displayed in the BKS plans and the plans accompanying the condominium plandeclaration, and such plans clearly designate the subject mechanical room as "W-212," then themechanical room is necessarily part of Penthouse West. Moreover, Ainetchi himself testified thathe discussed this particular room as being his unit's mechanical room with defendant's builder,and that he stored light fixtures in such room and had a key to it prior to the aborted closing.Plaintiffs also suggest that certain mechanical equipment or conduits for Penthouse West arelocated in, or are connected to, room W-212.
Defendant, on the other hand, points out that the room designated W-212 is physicallyconnected to Penthouse East, and is not contiguous at all to Penthouse West. Defendant alsonotes that the floor plans for Penthouse West attached to the original offering plan do not includethe mechanical room eventually designated W-212. It was further noted that the "Description ofAdditions" attachment to the offering plan provides that "[m]echanical equipment for PenthouseWest will be located inside the unit as well as on the roof of this [u]nit," and that room W-212clearly is not "inside the unit." Finally, defendant argues that the ambiguity in the BKS plans isdemonstrated by the fact that there are two separate rooms designated "W-212" on such plans.Clearly, a drafting error exists on the BKS plans, making it difficult to determine whether roomW-212 was conveyed to plaintiffs as part of Penthouse West.Although the trial court acknowledged that the BKS plans were ambiguous, itnevertheless excluded the testimony of the drafter of the plans, called by defendant to testify that[*2]the designation "W-212" was a scrivener's error made duringa modification to the plans. The court initially excluded the testimony on hearsay grounds, andprohibited further attempts by defense counsel to rephrase or to introduce documentary evidenceas an improper attempt to reform the contract without making it the subject of a counterclaim.The court's exclusion of the drafter's testimony was an improvident exercise of discretion andwas not harmless. The testimony regarding the scrivener's error was clearly relevant and based onpersonal knowledge; any hearsay problem could easily have been obviated. Given the importanceof this testimony to a crucial issue in the case, and because plaintiffs had the opportunity to offertheir own testimony concerning ownership of the room, we find that the trial court should nothave excluded the testimony, which should be admitted upon retrial. Defendant's failure toamend its counterclaim is no bar to raising this argument at trial, given the court's establishedauthority to permit amendment of the pleadings to conform to the proof at trial (CPLR 3025 [c]).In light of the erroneous evidentiary ruling, we remand for a new trial limited to the issue ofwhether the mechanical room designated W-212 on the BKS plans and other plans is part ofPenthouse East or Penthouse West.
The court properly awarded plaintiffs attorneys' fees solely on their claim for specificperformance associated with closing on the penthouse. The parties' settlement agreementindicated that once any unit in the building closed, plaintiffs were entitled to close on thepenthouse, regardless of the status of construction, its readiness for occupancy, or plaintiffs'payment of the entire purchase price, all such issues to survive the closing. Thus, plaintiffs hadan unqualified right to close, and, on that issue, they prevailed and are entitled to attorneys' fees(see Board of Mgrs. of 55 Walker St.Condominium v Walker St., 6 AD3d 279 [2004]). Any hearing on the amount ofattorneys' fees to be awarded should await the outcome of the trial relating to the mechanicalroom.
Plaintiffs' request to strike the supplemental record is denied. Concur—Lippman, P.J.,Gonzalez, Sweeny and Catterson, JJ.