Not Motion in Emma Greenwood v. Dale Brenner, Ez Hvac And Plumbing| Trellis.Law

On March 04, 2021 a Party Statement was filed involving a dispute between Capital One Bank, Emma Greenwood, and Dale Brenner, Ez Hvac And Plumbing, Shantel T Woolcock, for Commercial - Contract in the District Court of Ulster County.

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FILED: ULSTER COUNTY CLERK 02/03/2023 10:54 AM INDEX NO. EF2021-559
NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 02/03/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ULSTER
_______________________________________________________________________Ç
EMMA GREENWOOD, Index No.: EF2021-559

Plaintiff, NOTICE OF ENTRY
-against-

DALE BRENNER, Individually and In His Official

Capacity as Owner of EZ HVAC AND PLUMBING
andEZ HVAC & PLUMBING.
Defendants.
_______________________________________________________________________Ç

PLEASE TAKE NOTICE, that the within is a true copy of the Decision & Order executed

by the Honorable David M. Gandin, JSC dated January 27, 2023 and entered on January 27, 2023,

in the office of the Clerk of the within named Court.

Dated: February 1 2023

Poughkeepsie, New York

MACKEY BUTTS & WHALEN LLP

By: fl _ . (1
Christina A. Mazzarella, Esq.
Attorneys for

319 Mill Street

Poughkeepsie, New York 12601

(845) 452.4000
cmazzarella@mbwlawyers.com

To: LAW OFFICE OF CAPPY WEINER
Attn.: Cappy Weiner, Esq.
1 Albany Avenue
Suite G3A
Kingston, New York 12401
cappyweiner@gmail.com

{00384707 1}

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ULSTER
-----------------------------------------------------------------------X
EMMA GREENWOOD, Index No.: EF2021-559

Plaintiff, AFFIDAVIT OF SERVICE
-against-

DALE BRENNER, Individually and In His Official

Capacity as Owner of EZ HVAC AND PLUMBING
andEZ HVAC & PLUMBING.
Defendants.
_______________________________________________________________________Ç

Alyssa E. DeStefano, being sworn says: I am not a party to the action, am over 18 years of age

and reside in Poughkeepsie, New York.

On February 3, 2023, I served a true copy of the Notice of Entry and Decision and Order dated

January 27, 2023, upon the following attorney via email to the following address:

LAW OFFICE OF CAPPY WEINER
Attn.: Cappy Weiner, Esq.
1 Albany Avenue
Suite G3A
Kingston, New York 12401
cappyweiner@gmail.com

Alyssa E. DeStefano

Sworn to before me this
day of February, 2023.
MAUREEN MCKINNEY
NOTARY PUBLIC, STATE OF NEW YORK
UC. #01MC6101235
QUAUFIED IN ORANGE COUNTY
COMMISSION EXPIRES NOVEMBER 10.

NCt Public

{00076653 1}

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ULSTER

EMMA GREENWOOD, DECISION AND ORDER
Plaintiff, AFTER TRIAL
Index No. EF2021-559

-against- Present:
David M. Gandin, JSC
DALE BRENNER, Individually and In His Official
Capacity as Owner of EZ HVAC AND PLUMBING
andEZ HVAC & PLUMBING.
Defendants

This is a breach of contract action in which the Court granted plaintiff a motion for a default
judgment on liability in a Decision and Order dated July 11,2022. The Court held an inquest on
damages on November 1,2022 and December 14, 2022.In a contract dated June 1, 2020, plaintiff
hired defendant to replace an existing air conditioning system. The total contract price was
$10,700.00. Pursuant to the contract, defendant removed and replaced the indoor air handler and
outdoor condensing unit. Approximately one week later, plaintiff contacted the defendant stating that
the new unit was not working. She stated that she heard banging noises from the crawl space where
the new air handler was installed, saw blocks of ice on the compressor and that her basement crawl
space was cold. Defendant returned to inspect and thereafter a dispute arose. Plaintiff maintains that
the defendant was unable and/or refused to repair the unit so that the system worked properly. She
subsequently hired an independent inspector and a substitute contractor and electrician to remedy
the problem. Defendant maintains that the system was not working because of inadequate duct work
and that plaintiff had refused to and thereafter was unwilling to pay him to enlarge the duct work to
facilitate adequate air flow for the compressor to work properly.

Plaintiff asserts causes of action for breach of contract, negligence, fraudulent concealment
and deceptive acts and practices. A defaulting defendant admits all traversable allegations in the
complaint including the basic issue of liability. See Abbos v. Cole, 44 AD3d 3l (2"d Dept. 2007).
However, an allegation of damage is not a traversable allegation and thus a defaulting defendant does
not admitthe plaintiff s conclusion ofdamages .ld. Eden Park Health Services, Inc. v. Estes,2 AD3d
1186 (3'd Dept. 2003).

Plaintifls complaint alleges that in May 2020 she contacted defendant to evaluate and repair
an unknown problem with her air conditioning unit. It asserts that upon inspection defendant advised
she could either replace just the inside unit and not the compressor or replace the entire system. The
complaint asserts that plaintiff opted to replace the entire system and contracted with defendant for
such work at an agreed price of $10,700.00. She asserts that contract encompassed "the removal,
installation and performance or other necessary and appropriate work in connection to the air

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conditioning system at the premises."

Plaintiff testified at the inquest that subsequent to defendant's failure to provide her with a
working air conditioning system, she contacted a plumbing company "Totally Tankless" to assess
the situation. The owner of Totally Tankless, Steven Forest, testified that he performed a
consultation on July 21,2020. He states that the retum air handler was undersized andnot properly
secured, there were air leaks because the duct work was not sealed properly and that the condenser
coil was not protected with an air filter. He charged plaintiff $231.09 for the consult, as evidenced
by plaintiff s 5 in evidence. At Forest's recommendation, plaintiff retained Juliano Plumbing and
Heating to remedy the system. Chris Juliano testified that he conducted a full inspection of the
system and found that the new duct work was not correctly matched to the existing duct work, and
the existing duct work was old and had numerous leaks. Juliano charged plaintiff an initial consult
of $250.00 as evidenced by plaintiff s 7 in evidence. Plaintiff then retained Juliano Plumbing and
Heating at a cost of $10,872.63. The scope of work performed by Juliano Plumbing, as evidenced
by plaintifPs 8 in evidence, encompassed cutting out all existing duct work in the crawl spaces,
putting in an additional feed in the living room and an additional return in a bedroom. While Juliano
testified that the unit defendant installed was inadequately sized, he stated that he remedied the
existing system by making it a two zone system. The cost for such services was $3,880.13 in
materials and $6,992.50 in labor. Juliano further testified that the defendant installed a 2.5-ton
condenser although the contract with plaintiff stated he would install a4-toncondenser unit. Juliano
stated that a 2.5-ton unit was not adequate. He further advised plaintiff that the work required a
permit. He did not replace the units defendant installed although he testified ideally a 4-ton unit
would have been better for plaintiff s needs.

Defendant testified the reason the unit did not work was due to an inadequate air flow
moving over the condenser coil. He stated that the new compressor had a TXV metering device
which would shut down when there was insufficient air volume moving over the coil. Defendant
asserted that the contract did not include duct work. He offered conflicting testimony about whether
he discussed the need for duct work at the time of contracting with plaintiff. He testified that he
advised plaintiff that she needed duct work but she refused because the prior unit had worked before
the compressor failed. However, defendant also testified that he never discussed the need for
additional duct repair/replacement work until after plaintiff called stating that the unit was not
working. Defendant stated that at that time he advised plaintiff he would need to repair the duct work
for an approximate cost of $6,000.00 and plaintiff refused the offer. Defendant further asserted that
the installation of a2.5-tonunit instead of the 4-ton unit referenced in the contract was due to a
"clerical error." He claimed he did not charge plaintiff for a 4-ton unit and the 2.5 ton unit had no
adverse impact on the functioning of the system because the air handler in the crawl space was only
for a 2.5-ton system. Thus, he asserted it could not handle a larger condenser. He further testified
thata2.5-ton system was adequate to cool the approximately 1250 square feet of conditioned living
space. In rebuttal, plaintiff testified that the parties never discussed a need for duct work at the time
they entered into the contract.

The essential elements of a breach of contract cause of action are the existence of a contract,

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the plaintiff s performance pursuant to the contract, the defendant's breach and damages. See E
Ramapo Cent. Sch. Dist. v. New York Sch. Ins. Reciprocal, 199 AD3d 881 (2"d Dept. 2021).
Damages for breach of contract are intended to place the nonbreaching party in as good a position
as he or she would have been had the contract been performed. See Stokoe v. E-Lionheart, LLC,l29
AD3d 703 (2"d Dept. 2015). To the extent possible, the law attempts to secure the injured party the
benefit of his or her bargain. See Freund v. Washington Sq. Press, 34 NY2d 379, 382 (1974).
Damages are generally restricted to those which were reasonably foreseen or contemplated by the
parties at the time the contract was executed.

Plaintiff contracted for the replacement of an outdoor condensing unit, an indoor air handler
with a line set connecting the two, electrical connections, a ilew condensation pump and proper
pressurization of the system. The contract called for the installation of a Heil 4-ton, l3-seer
condensing unit. It is undisputed that defendant did not install a 4-ton condenser, but instead
installed only a 2.5-ton condenser unit. It is also undisputed that upon defendant's completion of
the work, the system did not function properly. Defendant does not dispute this, but attributes the
failures not to his workmanship but to inadequacies ofthe existing duct work. However, defendant
testified at trial that the compressor he installed functioned differently than the unit he replaced due
to the TXV metering device. Thus, he implicitly acknowledged that the conditions under which the
prior unit functioned may not have been adequate for the newly installed unit.

It is clear to the Court that a party contracting for an air conditioning system would
contemplate its ability to function upon installation. Plaintiff testified that defendant first mentioned
the need for duct work after the units he installed did not work properly. The Court credits this
testimony. The Court does not credit defendant's testimony that he advised plaintiff of the need for
duct work at the time of contracting and that she refused to include such services in the contract. In
addition to the defendant offering contradictory testimony on this point, it defies common sense that
the plaintiff would contract for the installation of an air conditioning system and refuse to remedy
defective duct work when expressly advised that this work was essential for the system to function
properly. The Court further notes that the plaintiff is a lay person and credits her testimony that her
conversations with defendant were limited to removal and replacement of the system with the
implicit understanding it would work when he was done with the job. It is undisputed that the system
did not work after the defendant finished performing his contractual obligations.

As the Court found defendant in default, he is deemed to have admitted all factual allegations
contained in the complaint and all reasonable inferences that flow from them. See Walley v.
Leatherstocking Healthcare, LLC,79 AD3d 1236 (3'd Dept. 2010). Hence, the issue of the
defendant's breach of contract is not before the Court. Instead, the Court must decide the measure
of damages as established at trial. In considering the issue of damages the court may consider
evidence "involving circumstances intrinsic to the transactions at issue that, if proven, will be
determinative of the plaintiff s real damages, which cannot be established by the mere fact of the
defendant's default." Rokino Optical Co. v. Camera King, Inc.,63 N.Y.2d 728,731(1984). Here,
the measure of damages is the costs plaintiff incurred to remedy the defendant's contract breaches
established as a matter of defendant's default.

a
J

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Plaintiff offered documentary evidence and testimony at trial that she paid a total of
$1I ,901 . 12 to contractors after the defendant had installed the air compressor and air handling units.
This amounts to $231.09 paid to Totally Tankless for a consult, $250.00 paid to Chris Juliano
Plumbing & Heating for a consult, and an additional $11,220.03 to Chris Juliano for work
performed. Plaintiff further testified that she paid "around $400-500" for a permit from the Town
of Woodstock and paid an electrician a total of $200.00 to perform electrical work related to the air
conditioning system. While defendant breached his contractual obligations, this does not establish
plaintiff s entitlement to all amounts paid to subsequent contractors based on the breach. In a
defective construction action, it is the plaintiff s burden to submit adequate evidence on the issue of
damages. See Ash v. Bollman, 80 AD3d 1l l5 (3'd Dept. 2011). The damages must be reasonably
certain and not speculative. Haber v. Gutmann,64 Ad3d 1106 (3'd Dept. 2009).

The evidence presented at trial establishes a contract for the removal and replacement of an
air conditioning unit, encompassing an air handler and air compressor. The June 1,2020 contract
(plaintiff s 3 in evidence) details the scope of work to be performed. It further states that any
alteration or deviation from that work would result in a charge over and above the agreed upon
contract price. The invoices defendant submitted reference replacement of an air conditioning unit.
Significantly, the contract does not include repair or replacement of the duct work in plaintiff s
home. While it certainly would have been a better practice for defendant to advise the plaintiff that
the existing duct work would or could prove inadequate for the system he was installing, particularly
as it included a TXV metering device which would shut down without sufficient air flow, plaintiff
fails to establish that the duct work was contemplated by the parties as part ofthe scope of the work
detailed in the contract. The Court recognizes that as a lay person plaintiff likely presumed that the
defendant would provide her with a working air conditioning system upon completion of his work.
This did not happen. However, evidence establishes that the primary reason it did not happen was
due to the inadequacy of the existing duct work and its inability to provide sufficient air flow for the
system to work. Notably, both expert consults emphasized the insufficient amount of air flow as the
primary cause of the unit not functioning. Further, the scope of work described in the invoice with
Juliano Plumbing is to cut out the existing duct work, put in an additional feed, a new return and
install all new duct work. While it is clear this was essential for the system to function properly, the
defendant did not contract to perform this scope of work. Wherefore, plaintiff has failed to establish
that the costs of replacing all the duct work is recoverable as a damage for defendant's breach of
contract.

At trial Plaintiff presented evidence that she paid $10,872.63 and an additional $347.50 to
Juliano Plumbing. However, the primary invoice for $ 10,872.63 references only duct work and does
not reference or detail any remediation of the work that was within the scope of the defendant's
contract. Moreover, plaintiff provided no competent evidence of the difference in price between the
2.S-tonand the 4-ton unit that plaintiff contracted for and the 2.5-ton unit that he installed. As noted,
it is plaintiff s burden to submit competent evidence on the issue of damages. See Thompson v.
McCarthy,29g AD2d663 (3'd Dept. 2001). The court is not permitted to speculate as to damages.
Here, plaintiff established the costs of the consults, retaining an electrician, the cost of obtaining a
required electrical permit and to for an air filter. She did not, however, provide the court with any

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basis to determine what, if any, of the $10,872.63 paid to Juliano Plumbing & Heating was related
to the defendant's scope of work within the contract. Based on the foregoing, it is

ORDERED, that defendant shall pay damages to the plaintiff in the amount of $1,559.82.
This consists of the costs of consults in the amounts of $231.09 and $250.00, $200.00 paid to an
electrician, $500.00 paid to the Town of Woodstock for a permit, 537 5.73 paid to Juliano Plumbing
& Heating relating to zone control and $3.00 for an air filter. Chris Juliano testified that the size of
the system plaintiff installed was inadequate and thus necessitated installation of a zone system. The
$375.73 invoice was related to this zone system. Plaintiff, however, failed to meet her burden of
establishing that any of the $10,872.63 paid to Juliano Plumbing & Heating was related to the
defendant's scope of work within the contract. The evidence establishes that most of the
inadequacies testified to by plaintiffls experts were the result of existing air flow issues and not the
defendant's breach of contract. The defendant should have addressed these issues with the plaintiff
at the time of contracting. This failure, however, does not make him responsible for the cost to
replace the duct system. It is further

ORDERED that plaintiff has failed to establish and entitlement to damages on her causes of
action for negligence, fraudulent concealment and deceptive acts and practices. While a defaulting
party is deemed to have admitted all factual allegations contained in the complaint, the Court is still
required to reach the legal conclusion that those factual allegations establish aprimafacie case. See
Walleyv. Leatherstocking Healthcare, LLC,79 AD3d 1236 (3'd Dept. 2010). Plaintiff s negligence
action stems from allegations entirely within the scope of the contractual relationship. Thus, a
separate negligence cause of action does not lie. For the same reasons, the facts as alleged in the
complaint failed to establish a prima facie case for fraudulent concealment. A party may not
maintain a cause of action to recover damages for fraud when the only fraud alleged relates to a
breach of contract . See Lee v. Matarrese, 17 AD3d 539 (2"d Dept. 2005). Plaintiff does not allege
the defendant made a material misrepresentation conceming an intention to perform a duty that was
collateral or extraneous to their contract. She further fails to state a deceptive acts and practices claim
pursuant to General Business Law $349. Plaintiff s claim pertains entirely to one contractual
agreement and did not allege the defendant engaged in deceptive acts or practices that were
"consumer oriented." See North State Autobahn, Inc. v. Progressive Ins. Group Co., 102 AD3d 5
(2"d Dept. 2012). To be "consumer oriented" alleged misleading information must have a broad
impact on consumers at large. Plaintiff fails to allege any such conduct related to this action.
Wherefore, it is

ORDERED thatplaintiffhas established anentitlement ofdamagesto $1,559.82 with interest
at the statutory rate from July 19, 2021 with costs and disbursements. Plaintiff is not entitled to
attorney's fees as such are not available in a breach ofcontract action unless the contract expressly
provides for the payment of such fees in the case of a breach.

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The foregoing constitutes the decision and order of the Court. The signing of this decision
and order shall not constitute entry or filing under CPLR 52220. Counsel is not relieved from the
applicable provisions of that rule regarding notice of entry.

Dated: Jn-*pr 2? ,2023
Kingston, New York ENTER:

D\
DAVID M. GANDIN, J.S.C

Pursuant to CPLR $5513, an appeal as of right must be taken within thirty (30) days after service by
aparty upon the appellant of a copy of the judgment or order appealed from and written notice of
its entry, except that when the appellant has served a copy of the judgment or order and written
notice of its entry, the appeal must be taken within thirty (30) days thereof.

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Case Info

Judge

James P Track Judge’s New Case

Case No.

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Document Filed Date

February 03, 2023

Case Filing Date

March 04, 2021

County

Parties

CAPITAL ONE BANK (USA), N.A. Plaintiff
Dale Brenner Defendant
Dale Brenner Defendant
Emma Greenwood Plaintiff
Emma Greenwood Plaintiff
EZ HVAC AND PLUMBING Defendant
EZ HVAC AND PLUMBING Defendant
MACKEY, JOSHUA E Attorney for the Plaintiff
MAZZARELLA, CHRISTINA A Attorney for the Plaintiff
Shantel T Woolcock Defendant
SLAMOWITZ, MITCHELL G Attorney for the Plaintiff
WEINER, CAPPY Attorney for the Defendant
CHRISTINA LE Attorneys for Plaintiffs

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Party Statement: Emma Greenwood v. Dale Brenner, Ez Hvac And Plumbing

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