Driveway settlement? Judge may impose decision

A court-suggested compromise aimed at settling a conflict between Shelter Island homeowners and a Mattituck-based landscaper has met with mixed reviews from attorneys representing both sides. But the two sides are virtually one phone call away, according to one attorney, from settling the case. If not, it returns to Supreme Court Justice Emily Pines for an imposed decision likely by  mid-July.

At issue is whether hedge fund manager Melissa Ko and her publisher husband S. Daniel Hahn have to pay for a granite and “Belgian block” driveway installed at their 34 Gardiners Bay Drive house, or whether Matthew Daly of MGD Horticulture acted without authority and lacked proper credentials to tackle the job.

Initially, Judge Pines ruled that Ms. Ko and Mr. Hahn had to pay for landscaping services, but said that since Mr. Daly wasn’t licensed as a contractor for home improvements, the couple couldn’t be held responsible for the driveway installation.

Mr. Daly’s attorney, Ed Boyle, sought a re-argument on the judge’s ruling in May, something Judge Pines refused last week while offering her own compromise, details of which haven’t been made public.

Initially, MGD had been paid $225,818 of a $226,088 bill for the initial phase of landscaping, but a subsequent $405,595 bill that included additional landscaping and the driveway remains unpaid.

Judge Pines has now ordered the couple to pay $276,000 more for landscaping. Mr. Boyle said another $47,000 is due in interest payments dating back to when the work was finished in August 2011.

Both Mr. Boyle and Robert Zausmer, who represents Ms. Ko and Mr. Hahn, said they are prohibited from disclosing the judge’s compromise offer. Mr. Boyle called it “creative.” She is “a very nice lady and a very bright lady” who “tried to be fair to both sides,” he added.

“The good judge that she is,” Mr. Zausmer said, the compromise solution is very close to what his clients will accept. But since Mr. Zausmer has submitted a counterproposal to the judge’s solution, Mr. Boyle characterized it as a “rejection.”

There is a single aspect of the judge’s compromise at which Ms. Ko and Mr. Hahn balked, Mr. Zausmer said. Still both sides agreed the judge’s solution was “a reasonable proposal,” Mr. Zausmer said.

“Both sides have made an honest, good faith effort to get this resolved,” he said. “We’re either a phone call away” from a solution or it will be back to court to continue the case.

To a claim from Mr. Zausmer that Mr. Daly performed the driveway work without the knowledge of Ms. Ko and Mr. Hahn, Mr. Boyle said the driveway proposal was contained in plans approved by the Shelter Island Zoning Board of Appeals and the couple has a certificate of occupancy that wouldn’t have been issued had the finished project not matched what was originally approved. All estimates for the work had been submitted to Dirtworks, a New York City landscaping architectural firm — not to be confused with S.C. Dirtworks, Inc. that has no connection to the project — and Dirtworks, in turn, had approval from the couple’s architect for the work, Mr. Boyle said.

That’s something Mr. Zausmer previously denied, saying his clients were in Korea and came home to find the work on the driveway had been completed without their permission and was far more expansive than anything they would have approved. The couple also maintain that Mr. Daly wasn’t licensed for home improvement construction. The landscaper countered that he didn’t need licensing since the driveway didn’t represent a home improvement, but was a part of the original project in developing the site. Mr. Boyle said that since the driveway had the proper permits from the town, further licensing wasn’t necessary.

Mr. Zausmer’s clients maintained that Mr. Daly had inflated his bills, while Mr. Daly said the project came in under budget.
Both sides are due back in Supreme Court in Riverhead July 15 for what could be a final resolution to the dispute.