NATURE OF THE ACTION

Plaintiff commenced this action by filing a Summons and Complaint on January 25, 2008. Plaintiff sought $32,375.00 in damages for defective and negligent installation of a tennis court. Defendant denied the allegations and filed a counterclaim. Defendant sought $7,230.00 for work performed on the basis of quantum meruit. Pursuant to NY Civ. Pract. Law & Rules §325(d), the action was transferred to this Court for a trial without jury. A one day trial was conducted.

Marc Underberg, 50% owner of M & M Management, explained how M & M purchased land and built a single-family home. M & M hired Defendant to construct an all-weather tennis court at the premises. The cost was $36,150.00. Plaintiff did not submit a copy of the written agreement between it and Defendant; instead it submitted a contract between Defendant and another individual in order to represent Defendant's contract. When billed for the portion of the agreement covering from the signing until the completion of grading, Plaintiff paid $17,267.50 on June 27, 2007. Plaintiff pre-arranged for and delivered RCA (recycled concrete aggregate) to the premises to be used by Defendant as a sub-base to the court. Defendant never finished the job because of problems that developed. Defendant laid the 1st lift of asphalt. The 1st lift should have been a 2-inch layer of a base coat, as provided in the contract.

According to Underberg, the 1st lift was too thin and was not a binder course. It contained too much oil and asphalt. It also was not 2-inches thick. Underberg then submitted a letter he sent to Defendant on July 29, 2007. The letter was as follows:

To whom it may concern:

Please be advised that the tennis court installation services that you provided were substandard, and of no use. Your lack of attention to the job, poor supervision of your subcontractors and use of the lowest grade materials available have caused considerable damage to M & M Property Management, LLC. This cannot be tolerated. Should you fail to remit a full refund by August 31, 2007 M & M will have no choice but to commence litigation to recover its full damages, which includes, but is not limited to, the interest costs, and the cost to rip out the defective work performed by [Defendant]. I urge you to take action immediately in regards to this matter. Please contact my office should you have any questions.

Regards

Marc Underberg, esq. [sic]

Underberg explained that he had a law degree but was not a practicing attorney. [NOTE: The NY Attorney Registration reflects he was admitted in 2006]He did not receive a response to his letter. In August 2007, M & M contracted with Century Tennis Inc. to complete the project. On cross-examination, Underberg acknowledged that Defendant expressed concerns about the pitch of the tennis court, but, regardless, M & M directed the pitch to be created.

Timothy Healion, owner of Century Tennis Inc., next testified for Plaintiff. Century Tennis is a family owned business, and Healion has been involved in that business for over 31 years. Century Tennis completed the installation of the tennis court after Defendant. He described that the asphalt depth ranged from 1/4-inch to 1-1/2 inches. The stone base was pushing through in spots. The asphalt would crack. He said he personally left footprints in the asphalt as he walked across it. The asphalt layer he saw was a sand mix; the top coat was never [*3]applied.He explained that the pitch was off, and that water would stand too long on the court. In spots there was a "rusting" that likely was caused from too much ash in the asphalt. Ash, however, is not an installation problem, but a mixture issue at the asphalt plant.

Defendant owner, Edward Kaplan, then explained that he has been building tennis courts for 27 years. Academically, he is a geologist. In the Fall 2006, he attempted to grade the tennis court area after the excavation and sub-base were done by the Plaintiff. The area then sat through the winter, and installation resumed in April 2007.Originally, the pitch was the way Defendant intended. Then M & M directed the pitch to be changed. Before making any change to his work, Kaplan asked M & M to provide him with a written plan which he later received. Kaplan told M & M that the soil was not percolating properly, it remained damp and muddy after rain. M & M told Kaplan it would "take care of it." In June 2007, Defendant then laid the first of the asphalt. He described that it was a mess, and he complained to M & M. As he dug the net posts, water filled the holes. He offered to lift the just laid asphalt so that M & M could repair the RCA it had set down. M & M directed Kaplan to get the job done. When he complained again, he received a telephone call from someone at M & M, not Underberg, who said, "you don't know who you are dealing with."

Kaplan agreed with the description provided by Century Tennis. As Defendant's truck rolled on the sub-base to lay asphalt, the truck would sink. The asphalt was fine, as well as the setting for laying the thickness. However, because of sinking and other sub-base imperfections, the asphalt would have been uneven across the court. He explained that when the contract called for 2-inches of asphalt it meant that the asphalt is 2-inches thick before being pressed down by a roller. The resulting layer would necessarily be less than the 2-inches that is poured. Kaplan said he sent letters to M & M about the poor sub-base. M & M responded by telling Kaplan that "time was of the essence." When asked why Century Tennis was able to complete the installation, Kaplan explained that Century Tennis added additional rock to the prior base, and did the work in August when it was drier.

Defendant's employee, Duane Donegin did the actual grading of the sub-base and RCA. He explained that he also told M & M that the sub-base was too soft. M & M told him to "finish the job." He said the truck would sink in spots.

Plaintiff then requested rebuttal testimony. It first re-called Marc Underberg. He denied that M & M did any remedial work before Century Tennis completed the job. He also denied that he threatened Kaplan on the telephone. He denied that he told Defendant to rush the job, and denied that Kaplan ever complained to him about the sub-base conditions.

The next rebuttal witness was Mike Stetson, an M & M employee. He worked as a licensed electrician on the job. He stated that he overheard a radio communication between Kaplan and the asphalt paver where they discussed that the ground was too wet. However, according to Stetson, Kaplan then added that the asphalt trucks had already arrived and could not be sent back. He then produced a tennis-ball sized sample of the asphalt he took from the tennis [*4]court before Century Tennis began its installation. He has kept this sample in his camera bag since 2007. According to him, the asphalt sample has no stone, and is very sandy.

In rebuttal to Stetson, Kaplan testified that he never saw Stetson on the work site. Also, he has never had or used a 2-way radio in the last 15-years. His employees do not carry 2-way radios. He also explained that a small sample is not indicative of actual conditions. Asphalt is a mixture, he said, and anyone can find a small amount that may not have been mixed consistently with the remainder of the mix.

Closing arguments were waived, and the Court reserved decision.

In a matter such as this, it is the province and indeed the obligation of the trial court to assess and determine matters of credibility. Morgan v McCaffrey, 14 AD3d 670, 789 N.Y.S.2d 274 (2d Dep't 2005); Matter of Liccione v Michael A., 65 NY2d 826, 493 N.Y.S.2d 121 (1985). Here, the burden is upon the plaintiff to plead and prove its direct case by a fair preponderance of the credible, relevant and material evidence with the same burden imposed upon the Third-party Plaintiff respecting his claim against the Third-party Defendant. Prince-Richardson on Evidence, §3-210; Torem v Central Avenue Rest, 133 AD2d 25, 518 N.Y.S.2d 620 (1st Dep't 1987). Credible evidence has been defined as evidence that proceeds from a credible source and reasonably tends to support the proposition for whit it is offered and is evidentiary in nature and not merely a conclusion of law, nor mere conjecture. Dille v Kelly, 31 Misc 3d 1232(A) (NY Supreme, NY County, 2011).

GENERAL:

Based upon the court's observations of Marc Underberg's demeanor, as well as the manner and unsubstantiated nature of his testimony, it does not find him to be credible. His credibility was also impugned because despite not being a practicing attorney he sent a notice of litigation on letterhead depicting that he operated a law office. The testimony of Michael Stetson was also incredible. Not only did the Court find it incredible that a tennis-ball size of asphalt has been kept in Stetson's camera bag for the past 4 years, he testified about hearing Defendant's owner on a 2-way radio when the Defendant testified they never used 2-way radios. In contrast, the Court fully credits Edward Kaplan's testimony.

PLAINTIFF'S CASE:

Kaplan did not dispute the opinions stated by Plaintiff's expert; he actually agreed with [*5]them. He acknowledged that the pitch was improper, but explained that it was so because of what Plaintiff demanded. In addition to his testimony was the plan which Plaintiff provided him which directed the pitch to be in a specific direction. It was the Plaintiff that laid the RCA and sub-base. Century Tennis was able to complete the project, not because Defendant did an improper job, but because the RCA and sub-base were modified so that Century Tennis was not confronted by the same poor conditions. When Defendant complained about the poor sub-base, it was directed to "get the job done." The Court cannot find Defendant responsible for conditions that were created by Plaintiff.

As for the asphalt sample, it did little to assist the Court in its determination. It appeared to be black and damp when it was submitted to the Court. Yet, within an hour after trial, it started lightening in color as it appeared to dry. Its thickness, measured from what appeared to be a flattened side, was about 1-1/2 inches. This would coincide with Defendant's explanation that the initial 2-inches of asphalt was pressed resulting in a slightly thinner layer. Although the Court observed "larger" rock-like particles in the asphalt, admittedly it does not possess sufficient asphalt knowledge to understand its import. The Court also understands that a tennis-ball size sample from an 8,160 square foot tennis court does not create an accurate representation.

DEFENDANT'S CASE

The elements of a claim for quantum meruit are: [1] the performance of services in good faith; [2] the acceptance of services by the person to whom they are rendered; [3] an expectation of compensation and [4] the reasonable value of the services. Miranco Contracting Corp. v. Perel. 57 AD3d 956 (2nd Dept.2008). However, a party will not be found liable if the court can find no intent to pay for the services actually rendered. 22A NY Jur2d Contracts §610. The mere acceptance of services without more has been held insufficient to support a claim for quantum meruit. 22A NY Jur2d Contracts §610.

The parties entered into a written agreement regarding the tennis court installation. That agreement had a fixed price for the itemized work. The agreement did not contain any provision that additional work beyond the agreement would be compensated. More so, Defendant failed to provide any basis upon which to base the value of its services.

By reason of the foregoing, it is hereby

ADJUDGED that the Plaintiff failed to plead and prove its case by a fair preponderance of the credible, relevant and material evidence; and it is further

ADJUDGED that the Defendant failed to plead and prove its case by a fair preponderance of the credible, relevant and material evidence; and it is further

ORDERED that the Plaintiff's action is dismissed; and it is further [*6]

ORDERED that the Defendant's counterclaim is dismissed.

This constitutes the decision and order of the Court.

Submit judgment.

ENTER

_____________________________________

Judge