| Feldin v Doty |
| 2007 NY Slip Op 09474 [45 AD3d 1225] |
| November 29, 2007 |
| Appellate Division, Third Department |
| Lawrence A. Feldin, Doing Business as In-Heat Services,Appellant, v Robert J. Doty et al., Respondents. |
—[*1] Rosemarie Richards, Gilbertsville, for respondents.
Kane, J. Appeal from an order of the County Court of Chenango County (Sullivan, J.),entered June 27, 2006, upon a decision of the court, among other things, in favor of defendantson their counterclaim.
Defendants contracted with plaintiff to have him install electrical, plumbing and heatingsystems into a house they were building. Plaintiff completed most of the work and was paid aportion of the amount due, when defendants asked him not to continue due to his alleged delay incompletion. Plaintiff sent a final invoice to defendants, which they did not pay. As a result,plaintiff commenced this action for the balance due for work he completed. Defendants answeredand counterclaimed, alleging that plaintiff caused them damages by failing to perform in aworkmanlike manner. At the nonjury trial, County Court heard the testimony of plaintiff, bothdefendants and defendants' expert, Jeffrey Clinton. The court held that defendants were entitledto the cost of repairing plaintiff's work, less the amount they owed plaintiff from his finalinvoice. The court accepted the amounts alleged by the parties and entered a judgment indefendants' favor. Plaintiff appeals.[FN*][*2]
In reviewing a decision following a nonjury trial, thisCourt may independently review the evidence presented and grant judgment as warranted by therecord, giving due deference to the trial court's credibility determinations (see Poli v Lema, 24 AD3d 981,983 [2005]; Northern Westchester Professional Park Assoc. v Town of Bedford, 60NY2d 492, 499 [1983]; but see Thoreson v Penthouse Intl., 80 NY2d 490 [1992]). Asdefendants did not appeal, the court's finding in favor of plaintiff on his complaint will stand inthe amount of $8,005.65, the amount that plaintiff concedes he proved. Relying on the court'scredibility determination in favor of Clinton, defendants proved on their counterclaim that someof plaintiff's work was either not completed or was performed in an unworkmanlike manner.
We disagree, however, with County Court's damages determination. Defendants bore theburden of proof on their counterclaim, including the burden to submit adequate evidenceconcerning damages (see Desai v Blue Shield of Northeastern N.Y.,178 AD2d 894,895-896 [1991]; Cotazino v Basil Dev. Corp., 167 AD2d 632, 633 [1990]; see also Peak v Northway Travel Trailers,Inc., 27 AD3d 927, 928 [2006]). The proper measure of damages in this constructioncontract action was "the difference between the amount due on the contract and the amountnecessary to properly complete the job or to replace the defective construction, whichever isappropriate" (Sherman v Hanu, 195 AD2d 810, 810 [1993]; see Thompson vMcCarthy, 289 AD2d 663, 664 [2001]).
Defendant Sally Doty testified that, aside from Clinton, who performed most of thecorrective work, defendants paid several other workers to complete or replace plaintiff's defectivework. She did not identify any defects, the amount of work performed or the amounts she paid toany of these workers to correct the defects, nor did she provide any proof on this matter otherthan her testimony (see Peak v Northway Travel Trailers, Inc., 27 AD3d at928-929; Route 7 Mobil v Machnick Bldrs., 296 AD2d 809, 810 [2002], lvdenied 99 NY2d 501 [2002]; Mid-State Precast Sys. v Corbetta Constr. Co., 202AD2d 702, 704 [1994], lvs dismissed 84 NY2d 923 [1994], 86 NY2d 855 [1995]). Shetestified that she had already paid Clinton about $3,000 and that more work was anticipated. ButClinton testified that the bills submitted into evidence included everything he did for defendants.Those bills totaled $2,809.02. While the record also contains Clinton's written estimate of $5,000to replace the boiler, Clinton performed corrective work on the boiler and did not testify that theboiler needed to be replaced. Based on the limited evidence submitted concerning damagessuffered by defendants, they were only entitled to a judgment of $2,809.02 on their counterclaim.Subtracting that amount from the judgment to plaintiff on his complaint, plaintiff is entitled to ajudgment in his favor in the amount of $5,196.63.
Mercure, J.P., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the order is modified,on the law and the facts, without costs, by revising the damages award to plaintiff on hiscomplaint to $8,005.65, revising the damages [*3]award todefendants on their counterclaim to $2,809.02, and revising the final judgment to be in plaintiff'sfavor in the amount of $5,196.63; and, as so modified, affirmed.
Footnote *: Although plaintiff's notice ofappeal indicates that he is appealing County Court's order, rather than the subsequently enteredjudgment, we exercise our discretion to deem the appeal taken from the final judgment(see CPLR 5520 [c]; Matter ofGeneral Motors Corp. [Sheikh], 41 AD3d 993, 994 [2007]).