This is the decision following the bench trial of the contractual issues arising from the construction of a new home at 41 Arbutus Way in the Prince's Bay section of Staten Island. The contract for $398,750 was signed on May 25, 2015 by homeowner Louis Figliolia and Clifford Siegel, president of Cee-Jay Real Estate Development Corporation. Work began on June 1, 2015. Later in the year, there were a series of disagreements, efforts at resolution, and then a breakdown and cessation of work by Cee-Jay in mid-January 20 of 2016.

Plaintiff filed suit on a number of grounds, including breach of contract, quantum meruit and to foreclose a lien in the amount of $54,000, which was reduced at the close of trial to [*2]$47,500. The Figliolias brought a counter-claim arguing that Cee-Jay performed the work inadequately, walked off the job, retained funds and owed the subcontractor payments.^[FN1]

Plaintiff contends it performed certain work for which it has not been paid. Defendants are seeking: their pro-rata share of an initial payment of $48,750, credit for work that was done without change-order authorization and their payments to subcontractors.

Louis Figliolia testified that he had over 50 years in the construction industry as a "carpenter, a plumber, a supervisor, and then a general supervisor." That he was more knowledgeable that the average client should have come as no surprise to Clifford Siegel. For his part, the knowledgeable Mr. Figliolia chose Mr. Siegel's firm to build his house.

This Court read through the exchange of text messages between the two men while the job was ongoing (and a little after) - - from June 18, 2015 to February 15, 2016 (exh E, pages GM00081 through GM00340).^[FN2] Louis Figliolia was unrealistically detail-oriented, which Clifford Siegel often attempted to accommodate. This is not to say that Mr. Figliolia was wrong when he pointed out that four-eighths inch sheetrock was used for walls when the contract called for a thickness of five-eighths (exh 1, page 2) or that the bathroom was wired with Romex cable, instead of BX, as specified in the contract (although BX was used elsewhere in the house).^[FN3]

Consider this exchange:

Siegel: Can I please order the windows??

Figliolia: Yes, however those slider in the kitchen and dining room are only a hundred and change less than the swing doors with side lites so I would like to make that change. Get me total and I will get you check.

Siegel: Don't go with swing doors - They suck with the screens. Stick to the sliders.

Figliolia: I think sliders suck I respect your opinion but I want swing.

Siegel: I'll price it out so you want both doors to swing open or one swing and one fixed??

Figliolia: 1 door swing and 2 side lites each." (Exh E, pp 081 to 082, June 19, 2015).

Then this text from Siegel: "Please let me know if kitchen window location is now 100% or I need to move again" (id., p 177, November 11, 2015).

And this exchange:

Siegel: All bathroom doors are rocked on one side so it's an easy alignment.

Figliolia: Jambs are for 5/8 rock but you install ½. And I want to install the balance of jambs.

(Id., p 284, January 9, 2016).

We heard some of this at trial. Figliolia stated: "The recess for the soap dish is supposed to be arched as per the spec." Siegel testified: "I've never actually ordered any tinted cement for any other job . . ."

If there was any doubt who Mr. Figliolia thought should be the general contractor, he had texted: ". . . I'm not charging you for the education! Yet!!" (Id., p 247, December 28, 2015).

In the January 8, 2016 texts, Figliolia asked about the progress of the job, and whether Siegel had a schedule. Then Siegel says: "If your patience is running out and are not happy with my job and all I've done then let me know and I'll tell you what I'm owed and you can get someone else to finish" (id., p 276).

Neither party was content with the other; it just did not work out. The parties recognized it and prepared to part ways and settle up. The Court finds that the contract was not improperly terminated - - how much each party owes the other will be determined based upon the terms of the contract applied as of that date. What Cee-Jay did on the job is generally what counts for settling up purposes.

The fifth page of the contract contains a payment schedule geared to the completion of each particular item or "milestone." It is not set out chronologically, although the items at the bottom of the list, such as staining floors and inspections, are clearly for the end stage and not at issue here. Dollar amounts are listed for 25 items.^[FN4]

The first item on the list is $48,750 to be paid "Upon signing of contract." The parties agree that this amount comprehends the entire contract and should be pro-rated per the payment milestones to reflect how much of the contract was completed. Arguably, one could have used some structural or functional method to measure contractual progress. To that effect, Louis Figliolia stated he could not get the mortgage he wanted during a 90-day window period running from December 1, 2015 because the house was not "substantially complete" according to the bank, which considered, for example, whether the bathrooms were finished.

With that said, the Court will use the dollar figures to measure the percentage that the job was completed - - obviously excluding the $48,750. It is not disputed that the following contractual milestone items, totaling $135,000, were fully completed:^[FN5]

The parties differ over "exterior brick/stucco/stone" and "sheetrock/installed/taped/sanded," for which $40,000 and $20,000, respectively, were due upon completion.

Siegel maintained that he did 60% of the stucco work, or $24,000 worth. In their post trial submission, defendants allowed no amount for stucco work. On the witness stand, Louis Figliolia was asked how much of it was completed:

"I think somewhere around 40 percent. If you do the square footage of all the stone around the foundation and both sides of the driveway, and the stone on top and the steps that's more than what was installed. Stucco wasn't . . . "

As for the sheetrock, defendants offer no amount in their item 2(b) submission and in closing, described the work as having been done "improperly." Siegel said he did a "minimal" amount of work on it, "less than 10 percent" and called it $1,500.

The Court concludes that the percentages proferred by Cee-Jay more accurately reflect the amount of work done, and plaintiff is to be credited with $24,000 and $1,500 toward fulfillment of the contract.

The fireplace, a $5,000 milestone item, was never installed; building it was a two-part process - - framing out the enclosure and installing a fireplace (exh 4, photo 15). Over defendants' objection, the Court credits Siegel's testimony that Cee-Jay spent $1,600 to frame the enclosure and $2,575 on a fireplace that did not meet with the client's approval.

The basement bathroom was not tiled. It is unclear how much tiling was done in the other bathrooms, but the Court concludes that there was no work on tiling the bathrooms. In the middle of a lengthy list of items that he was running through on the witness stand, Siegel said: "Install all bathroom floor and wall tiling full wall tile in shower area, and half wall tile in all other locations, owner supplies. That was not done."

The final item is "cement flat work," for which $15,000 would have been due. Siegel testified that "We did some work towards the cement flat work. The homeowner had some patio walkways that led from the street curb to the entrance door . . . So all the concrete base was laid for that area from the curb line to the front door, and I believe also to the side basement entrance door as well. In addition, we laid some of the concrete . . . in the little room next to the garage entry."

Figliolia was having none of it: ". . . [I]it's a ratslab not a smooth sidewalk. It's just rough concrete that you put a paver on. That was done." In any event, this trier of fact will characterize the cement flat work as 50% completed, or $7,500 worth.

Those are the milestone items that were fully or partially completed. The value thereof is [*3]the above subtotal of $135,000 plus $24,000 (stucco), $1,500 (sheet rock), $1,600 (fireplace framing), $2,575 (fireplace) and $7,500 (cement flat work) for a total expenditure of $172,175.

The $172,175 is 49% of the total milestone amounts of $350,000 ($398,750 less the $48,750 paid upon contract signing). So measured, the contract was 49% completed, which means that the Figliolias are entitled to a credit of 51% on their up front payment of $48,750; namely, $24,863.

Cee-Jay was not paid for the items that were partially completed. He is entitled to a credit therefor, except that Siegel did not make a sufficiently good case for the fireplace hardware; such amount is $34,600.^[FN7]

Cee-Jay seeks payment for expenditures for change orders. Page 7 of the contract provides that "Any change orders instituted must be made in writing upon a form provided by Cee-Jay . . .

Said form must be signed by both the owner and Cee-Jay."

At trial, when Siegel was asked, "So you would agree the contract required change orders to be in writing and signed," his response was, "I do." But he later testified that for items on a job like this, which were relatively small, "They may verbally tell us to do something . . . we would do the work . . . and then issue the change order . . ."

The text messages - - and their spontaneity - - made more of an impression; for example:

Siegel: "When am I starting what?? . . . I need the signed change order" (exh E, p 273, January 8, 2016).

Siegel: My tile guy ready to start as soon as we resolve and get the change orders executed" (id., p 289, January 12, 2016).

In his February 1, 2016 text, Figliolia seemed to be in a negotiating frame of mind. Commenting that his son and Siegel had had a fairly productive meeting the day before, Figliolia went on to say: "I will need a few things so that we can continue, 1st a list of change orders that you think are due. 2d a list of change orders that you feel are approved . . ." (Id., p 325).

Siegel replied, in part, "One change order covers it all" (Id., p 327).

Siegel: "I am ready to finish your job as soon as we resolve open change orders!!!!" (Id., pp 333-334, February 5, 2016).

The parties can mutually amend their contract in this fashion. The inference remains that in some cases, Siegel went ahead without verbal agreement:

Siegel: I can no longer afford to keep absorbing everything.

Figliolia: What is your rate for floor and wall?

Siegel: I sent you change order but you refused to sign - I'll send you revised one.

(Id., p 291, January 12, 2016); and

Siegel: I cannot bring in any more trades until the Change orders are finalized. (Id., p 302, January 12, 2016).

The Court concludes that Siegel is entitled to 70% of his submitted change orders which are detailed in the post-trial submission entitled Plaintiff's Damages, on pages 7 through 9, with two exclusions: 1) The $4,500 for grading. Plaintiff indicated that as an environmental wetland, alterations from the architectural plans were required. Given the scope of this task and the fact that Siegel has no request or approval notation, it will be denied. 2) The $2,000 for the PVC pipe will also be denied in view of the parties' conflicting testimony. (The exclusions are on page 9, numbers 19 and 20). The total from plaintiff thus amounts to: $18,145; 70% of which is $12,702, to be credited to plaintiff Cee-Jay.

The Figliolias maintain that they are owed $78,900 for payments made to subcontractors. This trier of fact is not persuaded by it. We have checks made out to various outside firms that Siegel used on work that was done during Cee-Jay's time at 41 Arbutus Way. The Figliolias went ahead and spent not insubstantial sums to finish their house after Cee-Jay had withdrawn.

That defendants' checks are dated after Cee-Jay stopped work does not necessarily mean they were not for work done prior to stoppage. In any event, defendants have not met their burden of proving the linkage; the possibility of using the same subcontractor to finish their house, does not make the proof any easier.^[FN8] It might be noted that on January 15, 2016, Louis Figliolia texted Clifford Siegel, ". . . as of now you owe me, but I might be wrong. . . (exh E, p 319).

The value of the work that was completed or partially completed (less the $2,575 fireplace) was $169,600, plus Cee-Jay's 49% share of the $48,750 deposit, or $23,887, plus the $12,702 due Cee-Jay for change orders, yielding a total value of the work Cee-Jay performed of $206,189.

Defendants had made payments under contract to Cee-Jay of $218,750, a figure that went unchallenged. Thus, defendants are owed $12,561. Under the circumstances, contractual interest costs and fees are inappropriate.

NOW therefore, in view of the foregoing,

IT IS ORDERED, that defendants are awarded the amount of $12,561 without contractual interest or fees.

IT IS FURTHER ORDERED that any lien on 41 Arbutus Way, Staten Island filed by or on behalf of Cee-Jay Real Estate Development Corporation is hereby discharged.