| Caggianelli v Sontheimer |
| 2007 NY Slip Op 10021 [46 AD3d 1206] |
| December 20, 2007 |
| Appellate Division, Third Department |
| Mavis Caggianelli et al., Appellants, v Stephen J. Sontheimer,Doing Business as Son's Masonry, Respondent. |
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Mugglin, J. Appeal from an order and judgment of the Supreme Court (Donohue, J.), enteredMay 24, 2007 in Columbia County, upon a decision of the court in favor of plaintiffs.
In 2005, plaintiffs employed defendant to perform certain work at their residence. Ofrelevance to this appeal is a written contract between the parties by which defendant agreed toinstall a stamped concrete patio and associated walkways and ramps, together with planters and aretaining wall along the driveway, at a total cost of $16,600. When defendant breached thewritten contract, plaintiffs brought this action seeking to recover the cost of repair of defendant'sdefective work and to complete the contract. When defendant defaulted in pleading, plaintiffsobtained a default judgment and, at an inquest at which defendant appeared pro se, presentedevidence in support of their complaint, including the testimony of a licensed contractor whoasserted that the total cost to repair and complete the work under the written contract was$52,100. Following the inquest, Supreme Court granted judgment against defendant in the sumof $26,600, representing damages consisting of $16,600 as the reasonable value of the workunder the written contract and $8,400 as the reasonable value for the demolition and clean-upwork associated with remediation of defendant's work. Plaintiffs now appeal.
In reviewing a decision following a nonjury trial, this Court may independently review theevidence presented and grant judgment as warranted by the record, giving due deference to thetrial court's credibility determinations (see Poli v Lema, 24 AD3d 981, 983 [2005]). Despite plaintiffs'uncontroverted evidence from a licensed contractor that the cost to remediate the work done bydefendant and to complete the work required under the written contract would be[*2]$52,100, Supreme Court concluded that "[d]efendant cannot beheld liable to the plaintiffs for the additional costs attributable to their engaging contractors whocharge more for performing the same work." This legal conclusion is error. It is well settled that,in a case of defective construction, the "appropriate measure of damages is the [reasonablemarket] cost to repair the defects" if the defects are reparable (Brushton-Moira Cent. SchoolDist. v Thomas Assoc., 91 NY2d 256, 261-262 [1998]), less any amount still due under thecontract (see Thompson v McCarthy, 289 AD2d 663, 664 [2001]). This general rule doesnot impose a condition that precludes hiring a contractor to perform the necessary remediation ata cost greater than the original contract price (see Hudson Iron Works v Beys SpecialtyContr., 262 AD2d 360, 362 [1999], lv denied 94 NY2d 754 [1999]), provided thatthe new contract terms are the reasonable market cost of the work to be performed.
The uncontroverted evidence before Supreme Court establishes that the cost to remediatedefendant's work and to complete the contract is $34,600. In addition, the uncontrovertedevidence establishes that it will cost $10,000 to demolish and remove the defective workperformed by defendant and $7,500 to clean up and restore the property following completion ofthe work. Given the absence of any record evidence suggesting that the contractor's customarycharges for such work do not represent the reasonable market cost, Supreme Court erred infailing to credit this evidence in its entirety. Accordingly, plaintiffs are properly entitled to ajudgment in the sum of $48,300, consisting of the total remediation cost of $52,100, less $3,800,the amount unpaid on the original contract.
Cardona, P.J., Crew III, Rose and Kane, JJ., concur. Ordered that the order and judgment ismodified, on the facts, without costs, by awarding plaintiffs damages in the amount of $48,300,and, as so modified, affirmed.