United States District Court, W.D. New York
J.B. STERLING COMPANY, Plaintiff,
WILLIAM H. VERHELLE, JR. and CYNDEE VERHELLE, Defendants.
DECISION AND ORDER
ELIZABETH A. WOLFORD UNITED STATES DISTRICT JUDGE.
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.
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.
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).
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).
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).
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.
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
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.).
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 ¶
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
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
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
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).
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