Opinion
532781
04-27-2023
Robert Bruce CARROLL, Appellant, v. RONDOUT YACHT BASIN, INC., Respondent.
Robert Bruce Carroll, Connelly, appellant pro se. Corrigan, McCoy & Bush, PLLC, Rensselaer (Scott W. Bush of counsel), for respondent.
Robert Bruce Carroll, Connelly, appellant pro se.
Corrigan, McCoy & Bush, PLLC, Rensselaer (Scott W. Bush of counsel), for respondent.
Before: Lynch, J.P., Aarons, Pritzker, Fisher and McShan, JJ.
MEMORANDUM AND ORDER
Pritzker, J.
Appeal from a judgment of the Supreme Court (Julian D. Schreibman, J.), entered January 27, 2020 in Ulster County, upon a verdict in favor of defendant.
The facts are set forth in two prior appeals involving these parties ( 183 A.D.3d 1000, 121 N.Y.S.3d 691 [3d Dept. 2020] ; 162 A.D.3d 1150, 79 N.Y.S.3d 321 [3d Dept. 2018], appeal & lv dismissed 32 N.Y.3d 1035, 88 N.Y.S.3d 392, 113 N.E.3d 448 [2018] ). As relevant here, plaintiff docked his boat at a marina in the Town of Esopus, Ulster County, which was operated by defendant. Plaintiff commenced this action alleging various causes of action, including breach of contract. Following joinder of issue, defendant moved for summary judgment seeking dismissal of the complaint. Supreme Court (Mott, J.) granted the motion in its entirety, but this Court modified said order by reversing so much thereof as dismissed the breach of contract cause of action ( 162 A.D.3d at 1152, 79 N.Y.S.3d 321 ). After reinstatement, plaintiff moved for partial summary judgment, which motion Supreme Court denied and this Court affirmed ( 183 A.D.3d at 1000, 121 N.Y.S.3d 691 ). A jury trial on plaintiff's breach of contract claim ensued. At the close of trial, both parties moved for a directed verdict, which motions were denied by Supreme Court (Schreibman, J.). The jury found in favor of defendant. Plaintiff then moved for a directed verdict, which was denied, and the court issued a judgment thereon. Plaintiff appeals.
We affirm. "A verdict in favor of a defendant may be successfully challenged as against the weight of the evidence if it can be shown that a preponderance of the proof presented at trial so strongly favored the plaintiff's case that a contrary verdict could not have been reached upon any fair interpretation of that evidence" ( Mosher v. Murell, 295 A.D.2d 729, 730, 744 N.Y.S.2d 61 [3d Dept. 2002] [internal quotation marks and citations omitted], lv denied 98 N.Y.2d 613, 751 N.Y.S.2d 168, 780 N.E.2d 979 [2002] ; see Adirondack Classic Design, Inc. v. Farrell, 182 A.D.3d 809, 811, 122 N.Y.S.3d 790 [3d Dept. 2020] ). As relevant here, "[t]o recover for a breach of contract, a party must establish the existence of a contract, the party's own performance under the contract, the other party's breach of its contractual obligations, and damages resulting from the breach" ( Adirondack Classic Design, Inc. v. Farrell, 182 A.D.3d at 811, 122 N.Y.S.3d 790 ). To establish the existence of a contract, the plaintiff must demonstrate that there was "an offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound" ( Galarneau v. D'Andrea, 184 A.D.3d 1064, 1065–1066, 126 N.Y.S.3d 766 [3d Dept. 2020] [internal quotation marks and citations omitted]). The court may enforce "an oral agreement ... as long as the terms are clear and definite and the conduct of the parties evinces mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms" ( id. at 1066, 126 N.Y.S.3d 766 [internal quotation marks and citations omitted]).
At trial plaintiff testified that, in April 2008, he paid the manager at the marina $500 as a down payment. It is plaintiff's contention that this $500 payment was the consideration for an oral contract allowing plaintiff to dock his boat in the marina for the summer. In support of this, plaintiff admitted an invoice between him and defendant to demonstrate the absence of any outstanding dues and the existence of an oral contract as of April 2008. Plaintiff testified that, not long after making this payment, defendant gave him a letter stating that he had to leave the marina. Plaintiff explained that he obtained an injunction from a local court and that, after that was lifted, defendant launched his boat and brought it to Kingston Marina. Plaintiff lost track of the boat's location after he refused to pay the money that defendant was demanding. Plaintiff eventually found the boat and prepared a trailer to tow the boat, yet could not because there was construction equipment blocking the boat's pathway. Ultimately, by the time plaintiff paid for, among other things, the removal of the boat from the water, he had paid over $300.
This invoice is difficult to interpret.
Plaintiff then explained that, in the past, he would make the "usual payment" to the marina in the spring for his "summer slip arrangement" and a second one in the fall for winter. Plaintiff testified that over 10 years there were 20 contracts, all of which were written except two that may have been oral. Plaintiff then testified that if he was not given a contract to sign, he would just pay the manager at the marina and would receive his slip. Despite testifying that only two contracts were oral, plaintiff did not admit into evidence any written contract or agreement language over this 10–year time period. On cross-examination, defendant admitted a contract between plaintiff and defendant from May 2007, signed by plaintiff, which reflected an agreement between the parties for plaintiff to dock his boat from May 2007 until October 2007 for $1,700. Plaintiff maintained that the alleged oral contract mirrored the terms of the May 2007 written contract. Plaintiff then conceded that the $500 payment made by him to the marina manager would not have satisfied the contractual requirement or the alleged oral contract.
Plaintiff called two additional witnesses, but their testimony was only slightly relevant, at best.
Based on the foregoing, we find that "the evidence at trial did not so preponderate in favor of plaintiff that the verdict could not have been reached on any fair interpretation of the evidence" ( Tozan v. Engert, 188 A.D.3d 1659, 1660, 135 N.Y.S.3d 725 [4th Dept. 2020] ). Although there appears to be no dispute that plaintiff offered defendant $500 and defendant accepted this payment, the parties do not agree on the purpose of this payment as defendant claims it was to satisfy plaintiff's outstanding obligations to defendant. Although plaintiff testified that he had entered into 20 contracts with defendant over the course of 10 years for the continued usage of the marina, plaintiff failed to produce evidence of any such contracts. Further, plaintiff conceded that the contracts, or agreements, entered into with defendant were adhesion contracts and that any money given by plaintiff was nonrefundable. Thus, while plaintiff relies on the argument that his past course of performance with defendant established mutual assent to an oral contract, the testimony provided fails to provide clear and definite material terms of the parties’ agreement (see Galarneau v. D'Andrea, 184 A.D.3d at 1065–1066, 126 N.Y.S.3d 766 ; see generally AMCAT Global, Inc. v. Greater Binghamton Dev., LLC, 140 A.D.3d 1370, 1372, 33 N.Y.S.3d 555 [3d Dept. 2016], lv denied 28 N.Y.3d 904, 2016 WL 6208978 [2016] ). As such, based on the evidence presented and giving deference to the credibility determinations of the jury, we find that the jury's verdict "was based upon a fair interpretation of the evidence" that plaintiff failed to establish the formation of an oral contract in April 2008 when plaintiff paid $500 to defendant ( Mosher v. Murell, 295 A.D.2d at 731, 744 N.Y.S.2d 61 ; see Tozan v. Engert, 188 A.D.3d at 1660, 135 N.Y.S.3d 725 ; see also Sternberg Serv. Corp. v. Maplewood Stone Co., Inc., 54 A.D.2d 787, 787, 387 N.Y.S.2d 750 [3d Dept. 1976] ). We find that plaintiff's arguments regarding the jury charge and the verdict sheet are unpreserved due to plaintiff's failure to raise any such objections at trial (see Adirondack Classic Design, Inc. v. Farrell, 182 A.D.3d at 815, 122 N.Y.S.3d 790 ; City of Binghamton v. Serafini, 8 A.D.3d 835, 837, 778 N.Y.S.2d 547 [3d Dept. 2004] ). We have examined plaintiff's remaining contentions and find them to be lacking in merit.
Lynch, J.P., Aarons, Fisher and McShan, JJ., concur.
ORDERED that the judgment is affirmed, without costs.