| Aviation Constructors, Inc. v Baldassano Architectural Group,P.C. |
| 2008 NY Slip Op 10571 [57 AD3d 927] |
| December 30, 2008 |
| Appellate Division, Second Department |
| Aviation Constructors, Inc., Respondent, v BaldassanoArchitectural Group, P.C., Appellant, et al., Defendants. |
—[*1] Rosenberg Calica & Birney LLP, Garden City, N.Y. (Robert M. Calica, Judah Serfaty, andRobert J. Howard of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract and conversion, in whichthe defendant Baldassano Architectural Group, P.C., counterclaimed to recover damages forbreach of contract, the defendant Baldassano Architectural Group, P.C., appeals from a judgmentof the Supreme Court, Suffolk County (Emerson, J.), dated February 9, 2007, which, upon adecision after trial dated July 7, 2006, is in favor of it and against the plaintiff in the principalsum of only $98,876.96 on its counterclaim.
Ordered that the judgment is affirmed, with costs.
The plaintiff Aviation Constructors, Inc. (hereinafter AC) retained the defendant BaldassanoArchitectural Group, P.C. (hereinafter the defendant) to draft architectural drawings for a projectto expand the Southwest Airlines terminal at the MacArthur Airport in the Town of Islip.
The project commenced without the execution of formal contracts. Southwest Airlines wouldnot enter into a formal contract with AC until it received approval from the Town of Islip and ACwould not enter into a contract with the defendant until it received a formal contract fromSouthwest Airlines, which did not occur until August 2002.[*2]
AC and the defendant executed a letter agreement datedFebruary 29, 2000 which stated "[u]ntil such time that negotiations of fees are completed, [thedefendant] will provide services on an hourly basis and will bill monthly in accordance with thehourly rates previously submitted."
Thereafter the defendant sent AC proposals for a fixed fee of 4.5% of the final constructioncosts, amounting to $1,262,250 based upon estimated construction costs of $27,500,000. Theseproposals were not countersigned by AC. By letter dated May 30, 2000, from AC to thedefendant, AC clarified that the hourly rate was based upon a "Direct Personnel Expense,"defined as annual salary excluding mandatory and customary benefits, divided by 2,080.
AC paid various invoices provided by the defendant in the stipulated amount of$1,190,058.05. When the invoices were audited, AC claimed it had been overcharged on theground that the hourly rate deviated from the direct personnel expense, and the defendantasserted a lien on the drawings it had prepared.
AC commenced this action against, among others, the defendant, inter alia, to recoverdamages for breach of contract based on the alleged overbillings, and to compel the defendant toturn over the plans to AC. The defendant counterclaimed, among other things, to recover feesbased upon an alleged agreement for a fixed fee of 4.5% of final construction costs, and basedupon an account stated. After a nonjury trial on the defendant's counterclaims, the trial courtfound that the defendant failed to establish that there was a contract between AC and thedefendant to pay the defendant a fixed fee and that the defendant failed to establish entitlement torelief based upon an account stated. The defendant was awarded $98,876.86 based upon AC'sdirect personnel expense formula.
"Where, as here, a nonjury trial is involved, this Court's power to review the evidence is asbroad as that of the trial court, bearing in mind that due regard must be given to the trial court,which was in a position to assess the evidence and the credibility of the witnesses" (Totonellyv Enos, 49 AD3d 710,711 [2008]). Exercising that power, we uphold that determination ofthe trial court.
The defendant failed to meet its burden of establishing that there was a meeting of the mindswith respect to its proposal for a fixed fee for its services (see Wells Fargo Funding, Inc. vLend-Mor Mtge. Bankers Corp., 39 AD3d 628 [2007]). Moreover, AC, in its letter datedMay 30, 2000, reiterated that the hourly rate was based upon a "Direct Personnel Expense"previously defined. An employee of the defendant acknowledged at the trial that there were oralobjections to the invoices and the parties agreed that the defendant would refund any amountsoverbilled and paid. Since AC objected and reserved its rights to a refund of any amountoverbilled, there was no account stated (see Tridee Assoc., Inc. v Board of Educ. of City ofN.Y., 22 AD3d 833, 834 [2005]; Erdman Anthony & Assoc. v Barkstrom, 298 AD2d981, 982 [2002]).
The defendant's remaining contentions are without merit. Fisher, J.P., Florio, Carni andChambers, JJ., concur.