| Miranco Contr., Inc. v Perel |
| 2008 NY Slip Op 10595 [57 AD3d 956] |
| December 30, 2008 |
| Appellate Division, Second Department |
| Miranco Contracting, Inc., Respondent, v Alan Perel et al.,Appellants, et al., Defendant. (And a Third-Party Action.) |
—[*1] Anthony J. Pocchia, Staten Island, N.Y., for respondent.
In an action, inter alia, to recover in quantum merit, the defendants Alan Perel and Lillian H.Associates appeal (1), as limited by their brief, from so much of an order of the Supreme Court,Richmond County (Gigante, J.), dated May 4, 2007, as denied those branches of their motionwhich were to set aside a jury verdict in favor of the plaintiff and against them in the principalsum of $294,045.70, and for a new trial on the issue of damages and, in effect, for judgment as amatter of law in favor of the defendant Alan Perel, individually, and (2) from a judgment of thesame court dated June 1, 2007, which, upon the jury verdict, is in favor of the plaintiff andagainst them in the principal sum of $189,000.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the facts and in the exercise of discretion, withcosts, and a new trial is granted on the issue of damages only, unless, within 30 days after serviceupon the plaintiff of a copy of this decision and order, it shall file in the office of the Clerk of theSupreme Court, Richmond County, a written stipulation consenting to reduce the damages to theprincipal sum of $112,203.80, of which $105,045.70 has been paid by the defendant, leaving anunpaid balance of $7,158.10, and to the entry of an amended judgment accordingly; in the eventthat the plaintiff so stipulates, then the amended judgment, as so reduced and amended, isaffirmed, without costs or disbursements. The finding of fact as to the personal liability of thedefendant Alan [*2]Perel is affirmed.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The third-party defendant Michael Miranda is president and sole shareholder of the plaintiffMiranco Contracting, Inc. (hereinafter Miranco), a general contractor. Lillian H. Associates(hereinafter Lillian H.) is a limited liability company that owns the subject premises (hereinafterthe premises) in Staten Island. The defendant Alan Perel is a neurologist who owns 80% ofLillian H., and who purchased the premises in order to expand his medical practice located nextdoor.
Lillian H. hired Miranco to perform construction at the premises from late 2001 to 2003.Lillian H. paid Miranco a total of $105,045.70 from July 15, 2002 through June 9, 2003 for itswork on the project. Miranco submitted to Perel a proposal dated May 29, 2003, for the nextphase of construction, with an estimated price of $1,176,000. Perel told Miranda that the pricewas unacceptable and asked him to reduce it. Miranda responded that he could not lower theprice, and Perel informed him that Lillian H. was going to get another contractor to finish thejob—the defendant Ultimate Alterations, Inc. (hereinafter Ultimate Alterations).
Miranco commenced this action, inter alia, to recover in quantum meruit against Perel,Lillian H., and Ultimate Alterations. Miranco sought to recover, among other things, the sum of$156,960 in quantum meruit. The jury found that the reasonable value of the work, labor,services, and materials provided by Miranco to Lillian H. and Perel (hereinafter the defendants)was $294,045.70, from which the Supreme Court subtracted the $105,045.70 already paid byLillian H. to Miranco, resulting in a judgment in the principal sum of $189,000 against thedefendants.
The defendants moved to set aside the verdict, for a new trial on the issue of damages, and,in effect, for judgment as a matter of law in favor of Perel personally. In an order dated May 4,2007 the Supreme Court denied the motion.
The Appellate Division has the power to review the weight of the evidence adduced at trial(see Kinney v Taylor, 305 AD2d 466 [2003]). A jury verdict should not be set aside asagainst the weight of the evidence unless the jury could not have reached its verdict on any fairinterpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744, 746[1995]). We accord deference to the credibility determinations made by the jury, which had theopportunity to see and hear the witnesses (see Nicastro v Park, 113 AD2d 129 [1985]).
To make out a claim in quantum meruit, a claimant must establish (1) the performance of theservices in good faith, (2) the acceptance of the services by the person to whom they wererendered, (3) an expectation of compensation therefor, and (4) the reasonable value of theservices (see Ross v DeLorenzo, 28 AD3d 631 [2006]; Tesser v Allboro Equip. Co.,302 AD2d 589, 590 [2003]; Matter of Alu, 302 AD2d 520 [2003]; Geraldi vMelamid, 212 AD2d 575, 576 [1995]). "The customary method of calculating damages on aquantum meruit basis in construction contract cases . . . is actual job costsplus an allowance for overhead and profit minus amounts paid" (Najjar Indus. v City of NewYork, 87 AD2d 329, 331-332 [1982], affd 68 NY2d 943 [1986]; see alsoWhitmyer Bros. v State of New York, 47 NY2d 960, 962 [1979]).[*3]
The jury's verdict on the issue of damages was notsupported by the weight of the evidence submitted during the trial with regard to the reasonablevalue of the work, labor, services, and materials provided by Miranco to the defendants, and itsubstantially exceeded the amount proffered by Miranco as expenses plus allowance for overheadand profits. The court's later deduction of $105,045.70 from the total damages award to credit thedefendants with amounts previously paid did not cure the error in the jury's award.
The jury's verdict imposing personal liability on Perel was supported by the weight of theevidence. One of the primary and completely legitimate purposes of incorporation is to limit oreliminate the personal liability of corporate principals (see Bartle v Home Owners Coop.,309 NY 103, 106 [1955]). Nevertheless, equity will intervene to "pierce the corporate veil"and permit the assertion of claims against the individuals who control the corporation in order toavoid fraud or injustice (see Matter of Morris v New York State Dept. of Taxation & Fin.,82 NY2d 135, 140-141 [1993]). Generally, piercing the corporate veil requires a showingthat the individual defendants (1) exercised complete domination and control over thecorporation, and (2) used such domination and control to commit a fraud or wrong against theplaintiff which resulted in injury (see Matter of Morris v New York State Dept. of Taxation &Fin., 82 NY2d 135, 141 [1993]; Seuter v Lieberman, 229 AD2d 386 [1996]). LillianH.'s actions in the instant case were clearly taken in the furtherance of Perel's personal medicalpractice. Thus, there was a fair interpretation of the evidence by which the jury could haveconcluded that Perel should be held personally liable.
In light of our determination, the issues raised on the appeal from the order have beenrendered academic.
The defendants' remaining contentions are unpreserved for appellate review, and, in anyevent, without merit. Lifson, J.P., Florio, Eng and Belen, JJ., concur. [See 2007 NY SlipOp 31063(U).]