New York Appellate Brief that Home Improvement Contractor Breached of Contract
Reply Brief of consumer re New York County Supreme Court judgment against consumer to pay contractor.
CAL. NO . ___________ Oral Argument By: Susan Chana Lask, Esq.
New York Civil Court
APPELLATE TERM----FIRST DEPARTMENT
ALTERED STRUCTURE, INC. & MICHAEL DESANTO
D/B/A/ ALTERED STRUCTURE
REPLY BRIEF FOR DEFENDANT-APPELLANT
Attorneys for Defendant-Appellant
853 Broadway, Suite 1516
New York, New York 10003
I. REPLY ............................................................................................................. 1
II. CONCLUSION............................................................................................... 2
As to Appellee’s “Point I”, he presents no counter-argument to Appellant’s argument that because Appellee proceeded solely on a breach of contract complaint and upon those issues at
trial then he never could prove quantum meruitt because it was never pled. At no time did he at trial even conform the pleadings to the proof because he was proceeding solely on a breach of
contract and there was no quantum meruitt proof made by Plaintiff-Appellee. Since he can not proceed by law on breach of contract then Appellee’s case must be dismissed.
As to Appellee’s “Point II”, Appellee’s counsel misrepresents the law to this court despite being informed that premature notice of appeal by a pro se party is not fatal. For the record
Appellant’s counsel’s May 4, 2004 letter faxed to Appellee’s counsel warned Appellee’s counsel not to present a premature notice argument as it is frivolous and said fax presented the
applicable law that Appellee chose not to present to this court:
“...the law is contrary to your argument that Ms. Doe’s appeal was premature and
should be dismissed. Especially in cases of pro se parties, the appellate courts
will not dismiss a premature notice of appeal. ( CPLR 5520[c]; Jump v. Jump, 268
A.D.2d 709, 710 n. 1, 701 N.Y.S.2d 503; Hunter v. Hunter, 206 A.D.2d 700, 701 n. 1,
614 N.Y.S.2d 784;Alessi v. Alessi, 734 N.Y.S.2d 665, 289 A.D.2d 782, 2001 N.Y.
Slip Op. 10350 (N.Y.A.D. 3 Dept.,2001)).
In Seigel’s CPLR 5520 Practice Commentaries 1995 Main Volume, C5520:1. Defects and Omissions he states also:
“Prematurity of the appeal, such as by taking it before the judgment or order
has been drafted and entered, can be disregarded. As long as the appeal is timely
now--when the matter is called to the court's attention-- and the service and filing
have been received by all entitled to it, the defect should be ignored and everything
sustained as is.”
Also CPLR 2001 can kick in to eliminate the prematurity issue. Moreso, premature notice never did and does not prejudice your client in any way. In light of the law, a
premature argument in this case would be frivolous.” Making matters worse, Appellee’s counsel then wrongfully submits a document to this court as
part of his Reply Brief that was not part of the record. Appellee never made a timely objection that the Record was incomplete (Appellant submits it was not incomplete). Appellee can not now
submit addendums or appendixes. The New York Supreme Court Rules sec.640.5(e), which is strictly adhered to, prohibit Appellee from submitting documents not part of the Record. Any
documents not in the Record must be disregarded by this court and Appellee’s Point II must be disregarded as well since it is based on improper procedure and mainly is not supported by the
Record nor by law.
As to Appellant’s Point III, Appellee concedes that Plaintiff Altered Structure, Inc. can not be a plaintiff by submitting that only “Michael Desanto dba Altered Structure” was licensed. Still, since
Appellee never entered into evidence a valid “dba” for the remaining plaintiff nor proof that defendant did business with that entity and no witness for that entity then there was no proof at
trial that such an entity validly existed nor that defendant worked with that entity. (Neggy Travel Service, Inc. v. Sabena Belgian World Airlines, 391 N.Y.S.2d 581, 56 A.D.2d 537 (1st Dept.,
Appellee’s own evidence shows only Michael DeSanto was involved individually as no company documents or an entity’s letterhead named “Altered Structure” were submitted into
evidence and all checks were made to “Michael DeSanto”, an individual and never to an entity “Michael DeSanto dba Altered Structure”. R.169-192. Thus, the only proper plaintiff would have
been Michael DeSanto individually or Altered Structure, Inc, both of whom were not licensed and thus could never be plaintiffs-and so the whole complaint failed from the start and the judgment
also so fails.
Plaintiffs failed to prove a quantum meruitt case, the party plaintiff’s were not proper parties and the lower court’s decision must be reversed and Plaintiffs’ complaint should be
dismissed in its entirety. Appellant requests costs and sanctions against Appellee for ignoring the law and making a frivolous argument as his “Point III” and disregarding 640.5(e).
Dated: New York, New York Yours, etc.,
May 13, 2004
Attorney for Defendant-Appellant
LAW OFFICES OF SUSAN CHANA LASK
Susan Chana Lask, Esq.