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J.B. Sterling Co. v. Verhelle

United States District Court, W.D. New York

September 9, 2019





         This action involves competing claims concerning renovation work performed by plaintiff J.B. Sterling Company ("Plaintiff) on a home owned by defendant Cyndee Verhelle in Mendon, New York. (Dkt. 1). Pending before the Court is a motion for partial summary judgment filed by defendants William H. Verhelle, Jr. and Cyndee Verhelle (collectively "Defendants")- (Dkt. 67). For the reasons set forth below, Defendants' motion is granted.


         The following facts are taken from Defendants' Local Rule 56 Statement of Undisputed Material Facts (Dkt. 67-2) and Plaintiffs response thereto (Dkt. 71), as well as the declarations and exhibits submitted by the parties. Unless otherwise noted, these facts are undisputed.

         Defendants are a married couple. (Dkt. 67-2 at ¶ 1; Dkt. 71 at ¶ 1). Since November 16, 2003, Cyndee Verhelle has been the fee owner of a property located at 16 Windham Hill, Mendon, New York 14506, which is improved by a single-family residence (the "Mendon Property"). (Dkt. 67-2 at ¶¶ 4, 6; Dkt. 71 at ¶¶ 4, 6). Prior to that date, Defendants had owned the Mendon Property as tenants by the entirety. (Dkt. 67-2 at ¶ 5; Dkt. 71 at ¶ 5). Plaintiff does not dispute that Cyndee Verhelle is the sole legal owner of the Mendon Property, but asserts that "at all times relevant" to this action, "William Verhelle represented himself as, and held himself out as an owner of 16 Windham Hill, Mendon, New York." (Dkt. 71 at ¶ 4).

         Plaintiff is a home improvement contractor. (Dkt. 67-2 at ¶ 2; Dkt. 71 at ¶ 2). Jeffrey Seidel is the owner, operator, and president of Plaintiff. (Dkt. 67-1 at ¶ 3; Dkt. 71 at ¶ 3).

         In or about 2013 or 2014, Defendants decided to substantially remodel the residence on the Mendon Property. (Dkt. 67-2 at ¶ 8; Dkt. 71 at ¶ 8). After a bid process, Plaintiff was chosen to perform the interior home improvement work, which involved "among other things, the total tear-out and reconstruction of the first floor of the residence, including a high end custom kitchen installation and craftmanship in, among other areas, the kitchen, pass through hallway, tasting room, and foyer." (Dkt. 67-2 at ¶ 10; Dkt. 71 at ¶ 10). The parties had worked together in the past, Plaintiff having previously been engaged by Defendants to provide home improvement work. (Dkt. 67-2 at ¶ 12; Dkt. 71 at ¶ 12).

         In late January of 2014, Mr. Seidel and Mr. Verhelle engaged in email communications regarding a proposed contract for the contemplated home improvement work. (See Dkt. 71-10). On February 5, 2014, Mr. Verhelle sent Mr. Seidel a copy of the contract that he (Mr. Verhelle) had signed. (See Dkt. 71-9). Mr. Seidel signed the contract on behalf of Plaintiff and sent a copy to Mr. Verhelle on February 6, 2014. (See Dkt. 67-17).

         The home improvement contract signed by Mr. Verhelle and Mr. Seidel (the "Contract") is dated January 21, 2014, and addressed to "Mr. & Mrs. W. Verhelle." (Dkt. 67-18 at 2). It defines the "signing parties" as "William & Cyndee Verhelle (Homeowner)" and "JB Sterling Company (Contractor)." (Id.). It is initialed by Mr. Verhelle and Mr. Seidel on the bottom, right-hand corner of each page. (Id. at 2-5). On the third page, there are signature lines for "Mr. or Mrs. W. Verhelle" and "J.B. Sterling Company." (Id. at 4). Mr. Verhelle's signature is dated "2/3/14," and Mr. Seidel's signature is dated "2/6/14." (Id.).

         The parties dispute the length of the Contract. Defendants maintain that the Contract totaled four pages (see Dkt. 67-1 at 18), while Plaintiff asserts that the Contract had a fifth page (see Dkt. 71 at ¶ 14). Each side has submitted to the Court what it purports is the version of the Contract that was signed by Mr. Verhelle and Mr. Seidel. (Dkt. 67-18; Dkt. 71-12). The disputed fifth page is entitled "IN-HOME SALE OR SERVICE NOTICE OF CANCELLATION," and states, in part, that "[i]n the event legal action is instituted to enforce payment of the amount due, the undersigned shall be liable for all attorney's fees, costs and expenses of collection, as well as 1.5% interest per month on balance due." (Dkt. 71-12 at 5). There are signature lines for "Mr. or Mrs. W. Verhelle" and "J.B. Sterling Company," both of which are blank. (Id.). However, the disputed fifth page appears to have been initialed in the bottom, right-hand corner by both Mr. Verhelle and Mr. Seidel. (Id.).

         The terms of the Contract were later amended by various "change orders." (Dkt. 67-1 at ¶ 26; Dkt. 71 at ¶ 26). It is undisputed that Mrs. Verhelle, the owner of the Mendon Property, never signed the Contract, nor did she sign any of the change orders. (See Dkt. 67-1 at ¶ 24; Dkt. 68-2; Dkt. 68-3; Dkt. 68-4; Dkt. 68-5; Dkt. 71 at ¶ 24). Plaintiff commenced the home improvement work at the Mendon Property on or about February 11, 2014. (Dkt. 67-1 at ¶ 25; Dkt. 71 at ¶ 25). The parties dispute who was responsible for providing project management services. In particular, the parties disagree over the role of Michael Short, an architect hired by Mr. Verhelle. Defendants contend that Mr. Short's role was merely to "intermittently observe and report to [Defendants] on the home improvement work being performed by Plaintiff," and that he "was not engaged to provide construction or project manager functions for this work." (Dkt. 67-12 at ¶¶ 43-44). Plaintiff, on the other hand, maintains that Mr. Short was serving as Mr. Verhelle's "architect, agent and project manager," and that he was "responsible for providing direction to the plaintiff as it related to any work which was not conforming to the plans/design he created for this renovation." (Dkt. 71 at ¶ 43). The parties further dispute the extent of Mr. Short's authority to accept, on Defendants' behalf, work performed by Plaintiff. (Dkt. 67-1 at ¶ 48; Dkt. 71 at ¶ 48). Defendants contend that the construction work performed by Plaintiff was "materially defective." (Dkt. 67-1 at ¶ 49). Plaintiff disputes this characterization, and states that it performed the construction work "in accordance with the standards of the industry in the community," and that the construction work "was ratified by defendants' supervising agent, Michael Short." (Dkt. 71 at ¶ 49).

         By August 4, 2014, Plaintiff had received a total of $441, 200.08 in installment payments from Defendants. (Dkt. 67-1 at ¶ 53; Dkt. 71 at ¶ 53). On August 6, 2014, which was a Wednesday, an issue arose related to tile for the fireplace in the master bedroom. (Dkt. 71-20). On that date, at 12:50 p.m., Mr. Seidel e-mailed Mr. Verhelle to inform him that the master bedroom fireplace was "prepped ready for tile," but that when Plaintiff picked up the tile it discovered that the tile wholesaler had "shipped the wrong shade." (Id. at 4). Mr. Seidel indicated that the correct shade has been ordered and "should arrive late next week," and asked whether Mr. Verhelle would "like [Plaintiff] not to work in your home this week?" (Id.)'.

         Mr. Verhelle sent a reply email at 1:42 p.m. that day, in which he stated that the "proposed delay" was "unacceptable," and requested that the correct tiles be overnighted so they could be installed that following week. (Id. 3-4). Mr. Verhelle further requested that Plaintiff "not work in the house after 3PM Friday (except the master bedroom)," and suggested a meeting on Saturday at 9:00 a.m., "to quickly review the punch-list." (Id.).

         Mr. Seidel replied to Mr. Verhelle's email at 3:11 p.m., stating that he had spoken to the tile wholesaler, and that the earliest possible delivery date was the end of the day on Friday. (Id. at 3). Mr. Seidel apologized for the delay, stated that Plaintiff would "expedite the completion of the bedroom fireplace as soon as the correct [tile] shade arrives," and agreed to a meeting at 9:00 a.m. on Saturday to "review the completion of the punch list." (Id.).

         Mr. Verhelle sent a further email at 3:43 p.m., asking how long it would take to complete the master bedroom fireplace, and if it could be done by the following Monday. (Id.). At 5:29 p.m., Mr. Seidel emailed back, stating that he had had a further conversation with the tile wholesaler and that the tile for the master bedroom fireplace could not be delivered until the following Wednesday, but that Plaintiff had "other tile to do in the mean time." (Id. at 2-3).

         Mr. Verhelle replied to Mr. Seidel at 6:18 p.m., stating that it was "complete nonsense" that the tile could not be shipped via air to arrive more quickly, and that "[g]iven your performance lapses, timing lapses and unacceptable work to date, I'm afraid you don't have the luxury of attempting to force the cost of you[r] ongoing ...

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