| Haber v Gutmann |
| 2009 NY Slip Op 06059 [64 AD3d 1106] |
| July 30, 2009 |
| Appellate Division, Third Department |
| John Haber, Appellant, v R. Wayne Gutmann,Respondent. |
—[*1] Rusk, Wadlin, Heppner & Martuscello, L.L.P., Kingston (Daniel G. Heppner of counsel), forrespondent.
Kane, J. Appeals (1) from a decision of the Supreme Court (Work, J.), entered July 7, 2008in Ulster County, in favor of defendant, and (2) from the judgment entered thereon.
After plaintiff purchased property containing a custom-built, Adirondack-style house in astate of disrepair, he and defendant discussed renovations to the house. In June 1992, defendantwrote plaintiff a letter generally outlining the procedures for renovations if defendant wereinvolved. Defendant was not eager to resume business as a contractor, so plaintiff hired anotherindividual, John Byer, to perform the renovations. When plaintiff became dissatisfied with Byer'swork, plaintiff and defendant again discussed the renovation project. In October 1993, plaintiffwrote to defendant and enclosed a check for defendant to start working on renovations to thehouse. Defendant cashed the check and began working on the house in May 1994. The parties'agreement required plaintiff to prefund the project.
After a temporary work stoppage in July 1994 due mainly to defendant's concerns overplaintiff's funding, the parties clarified and revised the terms of their agreement and defendantresumed work in the fall of 1994. Defendant and his crew continued working until January 1995,when he halted work as a result of plaintiff's failure to advance funds. Although the partiescorresponded and anticipated resumption of work, in April 1995 defendant removed hisequipment from the property. At the time that defendant ceased working, the interior of thehouse was gutted and the outside shell was temporarily water-tight, but lacked flashing around[*2]the chimneys and siding. At the time of trial in 2006 and2007, no further work had been done on the house.
Plaintiff commenced this action in January 2001, alleging, among other things, thatdefendant breached their contract. Following a bench trial, Supreme Court issued a lengthydecision finding that the parties had entered into two contracts, the first covering work fromOctober 1993 through July 1994 and the second encompassing work from fall 1994 throughJanuary 1995. The court found that plaintiff's cause of action was time-barred as to the firstcontract. As for the second contract, the court found that plaintiff failed to adequately provedamages, requiring dismissal of the breach of contract claim. In the alternative, the court foundthat if only one contract existed, plaintiff still failed to prove damages. Plaintiff appeals from thedecision[FN*]and subsequent judgment.
When reviewing a decision following a nonjury trial, this Court independently evaluates theevidence and grants judgment as warranted by the record, giving due deference to the trial court'scredibility determinations concerning witnesses (see Atkinson v State of New York, 49AD3d 988, 989 [2008]; Poli v Lema, 24 AD3d 981, 983 [2005]; but see Thoreson vPenthouse Intl., 80 NY2d 490, 495 [1992]). The record here discloses that the partiesentered into one contract for defendant to renovate plaintiff's house. The June 1992 letter did notconstitute an offer, as it was only an outline, did not contain necessary terms and did not disclosean intent by defendant to be bound. Even if that letter was an offer, plaintiff rejected it by hiringByer to perform the renovations. The October 1993 letter, referencing the parties' priorconversations, evidenced an offer which was accepted by defendant when he cashed the enclosedcheck and began performing renovation work (see Sky-Lift Corp. v Flour City ArchitecturalMetals, 298 AD2d 214, 215 [2002]). Defendant stopped working in July 1994 and onlyrecommenced work after the parties discussed and refined some of the terms, including anincrease in defendant's compensation. Supreme Court considered this the termination of the firstcontract and an agreement on a second contract. Yet the record reveals that, despite somedisagreement in July 1994 concerning billing and funding, both parties envisioned a continuationof their relationship with defendant acting as plaintiff's contractor. That relationship did indeedcontinue. Thus, the initial contract continued, albeit with some amendments to the original terms.As only one contract existed and work under that contract terminated less than six years prior tothe commencement of this action, the statute of limitations did not bar plaintiff's claimconcerning any of defendant's work (see CPLR 213 [2]; City School Dist. of City ofNewburgh v Stubbins & Assoc., 85 NY2d 535, 538 [1995]).
Supreme Court correctly dismissed plaintiff's breach of contract claim. Plaintiff bore theburden of proving damages resulting from defendant's breach of contract (see Peak vNorthway Travel Trailers, Inc., 27 AD3d 927, 928 [2006]; Cotazino v Basil Dev.Corp., 167 AD2d 632, 633 [1990]). In general, the proper measure of damages for breach ofa construction contract is the cost to either repair the defective construction or complete thecontemplated construction (see Route 7 Mobil v Machnick Bldrs., 296 AD2d 809, 810[2002]; Thompson v McCarthy, 289 AD2d 663, 664 [2001]; Lyon v BeloskyConstr., 247 AD2d 730, 731 [1998]). The damages must be reasonably certain, however, notbased upon speculation (see Peak v [*3]Northway TravelTrailers, Inc., 27 AD3d at 929).
Here, plaintiff's expert architect, who examined the house in 2003, testified regardingnumerous defects in defendant's work. This expert opined that demolishing the house andrebuilding would cost less than repairing it piecemeal. Plaintiff's expert provided estimates forthe overall cost of repairing versus replacing the building, but never testified as to the cost ofrepairing any specific defects in the house to substantiate his repair estimate (see Feldin vDoty, 45 AD3d 1225, 1227 [2007]; Thompson v McCarthy, 289 AD2d at 665;compare Cotazino v Basil Dev. Corp., 167 AD2d at 633). He also stated that the precisecost of repairs must be based upon a detailed structural analysis, which was admittedly neverperformed. Defendant's expert architect, who also examined the house in 2003, opined thatdefendant's construction work was properly done and that the house seemed sound.
Supreme Court accurately noted that the record was not entirely clear as to what work hadbeen completed by Byer as opposed to defendant; some work deemed defective was clearlyperformed by Byer. Plaintiff did no further work on the house, leaving it exactly as whendefendant ceased working, although defendant only left the house temporarily water-tight. Somedamage occurred due to this neglect of the property for eight years prior to the experts'inspections and 12 years prior to the completion of the trial. Plaintiff's and his expert's maincomplaints were the alleged structural defects in the property, yet no structural analysis wascompleted and there was no itemized explanation as to what it would cost to make the buildingstructurally sound. Considering the uncertain nature of the original supporting structure for thehouse, its soundness for decades prior to commencement of any work, the absence of a structuralanalysis, and the lack of any sagging, shifting or settling in the more than 10 years sincedefendant left the work site, the court reasonably determined that plaintiff failed to prove that hesuffered damages as a result of defendant's work on his property (see Route 7 Mobil vMachnick Bldrs., 296 AD2d at 810; Thompson v McCarthy, 289 AD2d at 665;Sherman v Hanu, 195 AD2d 810, 810-811 [1993]). Accordingly, the breach of contractcause of action was properly dismissed.
Cardona, P.J., Rose, McCarthy and Garry, JJ., concur. Ordered that the appeal from thedecision is dismissed. Ordered that the judgment is affirmed, with costs.
Footnote *: While a decision is anunappealable paper, requiring dismissal of the first appeal, the appeal from the judgmentincludes review of the underlying decision (see CPLR 5512 [a]).