Mora v. RGB, Inc.Mora v. RGB, Inc.
JORGE MORA, Appellant-Respondent, v RGB, INC., Respondent-Appellant, and CHARLES ROSE, Respondent. [794 NYS2d 134]
Kane, J. Cross appeals from an order of the Supreme Court (Spargo, J.), entered January 15, 2004 in Ulster County, which, inter alia, denied plaintiff‘s motion to compel certain disclosure from
Plaintiff entered into a contract with defendant RGB, Inc. to construct a new home for him. The contract had a fixed price of $1.54 million. A work change clause in the contract provided that any changes had to be authorized by a written change order signed by both parties, the change order had to specify the cost of the proposed work change, full payment for additional work was due at the time the change order was signed and RGB was not required to begin work on any changes until it received the signed change order and payment. Plaintiff contends that there was an oral agreement that the price of change orders would be calculated as RGB‘s actual costs of materials and labor plus 22%. The parties thereafter entered into three change orders. Plaintiff became suspicious regarding RGB‘s calculation of the change order prices and demanded that RGB provide documentation for all costs associated with the construction project. After RGB refused to provide the demanded documentation, the contract was terminated, either through RGB‘s abandonment of the site or by plaintiff ordering RGB to cease working.
Plaintiff commenced this action alleging, among other things, that RGB breached the contract and that defendant Charles Rose, RGB‘s president, fraudulently induced plaintiff into signing inflated change orders. Defendants answered and counterclaimed, raising many defenses, including violation of the statute
Initially, as RGB consent to disclosure of the names and identifying information regarding its subcontractors, the portion of Supreme Court‘s order permitting redaction of that information is deleted.
Plaintiff is not entitled to disclosure of all documents related to the construction of his house. While disclosure provisions are to be liberally construed, the trial court is vested with broad discretion to supervise discovery and determine what is “material and necessary” under
If plaintiff can establish the existence of an oral agreement that change orders would be priced as actual cost plus 22%, he has alleged that Rose personally furnished change orders including amounts that he knew were above RGB‘s actual costs. These allegations, if true, could constitute misstatements of material facts presently in existence, known by Rose to be false and made for the purpose of inducing plaintiff to sign the change orders. The remaining elements cannot be shown without the information that RGB originally refused to turn over but was later deemed proper for disclosure by Supreme Court. Hence, the court should have denied Rose‘s motion to dismiss the complaint against him, without prejudice for renewal after further disclosure (see Shlang v Bear‘s Estates Dev. of Smallwood, N.Y., supra at 915-916).
Questions of fact exist regarding whether the statute of frauds prevents plaintiff‘s reliance on an alleged oral modification to the contract, or whether subsequent writings between the parties constitute written clarification or a modification of the term “cost” in the original contract. A written agreement containing a provision prohibiting oral modifications of the agreement cannot be modified to change or add to its terms except in a writing “signed by the party against whom enforcement of the change is sought” (
Mercure, J.P., Crew III, Mugglin and Lahtinen, JJ., concur.
Ordered that the order is modified, without costs, by (1) deleting so much thereof as permitted redaction of information related to defendant RGB, Inc.‘s subcontractors and (2) reversing so much thereof as granted defendants’ cross motion to dismiss the complaint against defendant Charles Rose; said motion denied, without prejudice; and, as so modified, affirmed.