| Home Insulation & Supply, Inc. v Buchheit |
| 2009 NY Slip Op 00920 [59 AD3d 1078] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| Home Insulation & Supply, Inc., Appellant, et al., Plaintiff, vGerald A. Buchheit, Jr., Respondent. |
—[*1] Law Offices of Robert G. Walsh, P.C., Blasdell (Robert G. Walsh of counsel), fordefendant-respondent.
Appeal from an order the Supreme Court, Erie County (John A. Michalek, J.), enteredOctober 3, 2007. The order, insofar as appealed from, found in favor of defendant and againstplaintiff Home Insulation & Supply, Inc. after a nonjury trial.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs and judgment is granted in favor of plaintiff Home Insulation & Supply, Inc.and against defendant on the first cause of action, and
It is further ordered that judgment be entered in favor of plaintiff Home Insulation & Supply,Inc. and against defendant in the amount of $6,442, with interest at the rate of 9% per annum,commencing September 12, 2003, plus costs and disbursements.
Memorandum: Home Insulation & Supply, Inc. (plaintiff) commenced this action seekingdamages in the amount of $6,442 based on the alleged failure by defendant to pay plaintiff forthe installation of certain insulation at his residence. We conclude that Supreme Court erred infinding after a nonjury trial that plaintiff failed to establish the existence of a written agreementbetween plaintiff and defendant for the disputed insulation services and thus that plaintiff wasnot entitled to recover damages from defendant. Viewing the evidence in the light most favorableto defendant (see Matter of City ofSyracuse Indus. Dev. Agency [Alterm, Inc.], 20 AD3d 168, 170 [2005]), we concludethat there is no fair interpretation of the evidence supporting the court's determination thatplaintiff was not entitled to recover from defendant. Upon our review of the record, we concludethat plaintiff established entitlement to judgment based on the theory of quantum meruit (see Capital Heat, Inc. v Buchheit, 46AD3d 1419, 1420 [2007]). We further conclude that there is no fair interpretation of theevidence supporting the implicit conclusion of the court that defendant hired a general contractorto perform the renovation work on his residence and that plaintiff should have sought paymentfrom the general contractor instead [*2]of seeking paymentdirectly from defendant (see id. at 1421). We therefore grant judgment in favor ofplaintiff and against defendant on the quantum meruit cause of action. Under the circumstancesof this case, we conclude that plaintiff is entitled to a discretionary award of preverdict interest atthe rate of 9% per annum, commencing September 12, 2003, the date on which plaintiff certifiedthat its work at the project was complete, plus costs and disbursements (see generallyCPLR 5001 [a], [b]; cf. Bank of New York v Spiro, 267 AD2d 339 [1999]).Present—Hurlbutt, J.P., Centra, Fahey and Peradotto, JJ.