HAROLD F. KELLY et al., Appellants,
CHRISTOPHER BENSEN, Individually and Doing Business as BENSEN LAND SERVICE, Respondent.
Calendar Date: April 25, 2017
Russell A. Schindler, Kingston, for appellants.
Kosich, Greenville, for respondent.
Before: Garry, J.P., Lynch, Rose, Clark and Aarons, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Elliott III, J.), entered
May 7, 2015 in Greene County, upon dismissal of the complaint
and counterclaim at the close of proof.
Harold F. Kelly (hereinafter plaintiff) is the chief
executive officer of plaintiff Kelstar Industries, LLC.
Plaintiff's spouse, Nancy Kelly (hereinafter Kelly), is
the president of Kelstar. Plaintiff and Kelly entered into an
oral agreement with defendant to install a leach field and a
concrete patio at their residence in the Town of Durham,
Greene County. Thereafter, plaintiff and Kelly, allegedly
acting on behalf of Kelstar, entered into a second oral
agreement with defendant to construct two rental apartments
in a building in Durham . In June 2012, plaintiffs commenced
this breach of contract action. The first cause of action
asserted that the leach field did not work and that there
were cracks in the patio, and the second cause of action
alleged that the apartments were defectively constructed.
Supreme Court, among other things, dismissed the complaint
following a nonjury trial, finding, among other things, that
plaintiffs had failed to prove damages as to either
agreement. Plaintiffs appeal.
reviewing a decision in a nonjury trial, this Court is
empowered "to independently consider the probative
weight of the evidence and the inferences to be drawn
therefrom, " but we defer to the factual findings made
by the trial court, particularly where they are based upon
credibility assessments (Jump v Jump, 268 A.D.2d
709, 710 ; see Winkler v Kingston Hous. Auth.,
259 A.D.2d 819, 823 ). As with any contract, an oral
agreement is not enforceable unless there is "a
manifestation of mutual assent sufficiently definite to
assure that the parties are truly in agreement with respect
to all material terms" (Matter of Express Indus.
& Term. Corp. v New York State Dept. of Transp., 93
N.Y.2d 584, 589 ; accord Towne v Kingsley, 121
A.D.3d 1381, 1382 ). In making this determination,
"the court looks not to the parties' after-the-fact
professed subjective intent, but rather at their objective
intent as manifested by their expressed words and conduct at
the time of the agreement" (Winkler v Kingston Hous.
Auth., 259 A.D.2d at 823; accord Jump v Jump,
268 A.D.2d at 710).
plaintiffs' burden to establish that the parties'
agreements were sufficiently specific to be enforceable
(see Muhlstock v Cole, 245 A.D.2d 55, 58 ).
Beginning with the contract pertaining to the apartments,
this burden was not satisfied. The testimony of plaintiff,
Kelly and two contractors who completed the project after
defendant stopped work established that defendant was hired
to convert a former office building into two rental
apartments and that plaintiff fired him after several months
of work. The testimony of plaintiff and Kelly describing the
agreement was notably vague; neither witness described the
scope of work in sufficiently specific terms to support a
determination that the parties had reached a meeting of the
minds. No plans or documents memorializing the agreement were
submitted, and the testimony provided almost no details as to
the size, layout and features of the apartments that
defendant was engaged to construct. Defendant presented
evidence that plaintiff repeatedly changed his mind as to the
size and layout of the apartments. Under these circumstances,
it is impossible to determine whether, for example, defendant
located shower drains in the wrong place, as plaintiffs
allege. It is further not possible to determine how much, if
any, of defendant's work was defective and how much was
similarly offered little or no testimony relative to the
agreed-upon consideration. They submitted no evidence that
the parties agreed upon an estimate or a total price for the
construction, nor did they offer evidence as to the
agreed-upon terms of payment, such as an hourly rate.
Plaintiffs claim that defendant was paid for work that he did
not complete, while defendant testified that he was not paid
for all of the work that he performed. In the absence of
proof of the agreed-upon scope of work and terms of payment,
it cannot be determined whether either claim is correct.
Further, although plaintiff testified that defendant was
fired because his work was progressing too slowly, and the
complaint alleged damages for resulting lost rent, plaintiff
and Kelly offered no proof that they ever agreed with
defendant upon an anticipated completion date; defendant
testified that there was none. For these reasons, the alleged
contract is unenforceable and the cause of action relative to
the apartments was properly dismissed (see Matter of
Express Indus. & Term. Corp. v New York State Dept. of
Transp., 93 N.Y.2d at 590-591; Wild v Hayes, 68
A.D.3d 1412, 1414 ; compare Stein v Anderson,
123 A.D.3d 1322, 1323 ; Dzek v Desco Vitroglaze of
Schenectady, 285 A.D.2d 926, 927 ). 
to the earlier contract pertaining to the residence,
plaintiff and Kelly testified that they agreed that defendant
would construct a patio at the back of their residence and
install a new leach field to correct an existing odor
problem. Defendant completed both projects and was paid in
full. Plaintiff and Kelly later became dissatisfied when
cracks developed in the patio, the odor persisted and other
problems occurred with the leach field.
the patio, there appears to be no dispute that the parties
reached a meeting of the minds by which they agreed that
defendant would construct a concrete patio, that defendant
did so, and then was paid in full. Plaintiffs thus met their
burden of establishing an enforceable contract. However, they
entirely failed to provide any proof of damages, and such a
failure "is fatal to a cause of action for breach of
contract" (Proper v State Farm Mut. Auto. Ins.
Co., 63 A.D.3d 1486, 1487 ). Plaintiff testified
as to the total amount of an estimate that he had obtained
for replacing the patio, together with another unrelated
project. Neither he nor any other witness provided a
breakdown of the portion of this estimate that pertained to
the patio. Supreme Court refused to admit the
contractor's written estimate, as inadmissible hearsay,
and plaintiffs offered no other proof of damages. While
plaintiffs could have proven damages "in any manner
which is reasonable, [such proof] may not be based upon
speculation and, instead, must be reasonably certain"
(Peak v Northway Travel Trailers, Inc., 27 A.D.3d
927, 929  [internal quotation marks and citations
omitted]). Thus, Supreme Court properly found that plaintiffs
could not recover on this aspect of the cause of action
(see Abselet v Satra Realty, LLC, 85 A.D.3d 1406,
1408 ; Haber v Gutmann, 64 A.D.3d 1106,
1108-1109 , lv denied 13 N.Y.3d 711');">13 N.Y.3d 711 ;
New Horizons Amusement Enters. v Zullo, 301 A.D.2d
825, 827 ).
the leach field, plaintiffs failed to establish the existence
of an enforceable contract. The testimony of plaintiffs'
witnesses describing the agreed-upon scope of work was both
vague and inconsistent. Supreme Court credited
defendant's testimony that, upon excavating the area, he
discovered that there was no existing leach field, that
plaintiff refused to agree to defendant's recommendations
as to the construction of a proper leach field, and that he
instead directed defendant to use a "band-aid"
solution. Defendant claimed that he warned plaintiff that
this system would not work. Plaintiffs provided no evidence
revealing that defendant's description of the work that
he performed was inconsistent with the parties'
agreement, nor any other evidence that his work was defective
in any specified manner. On the contrary, plaintiff testified
that he did not know what was wrong with the new system or
what repair or replacement would cost, as he had not obtained
any inspections or estimates. The ...