| Intercounty Supply, Inc. v TAP Plumbing & Heating, Inc. |
| 2009 NY Slip Op 02328 [60 AD3d 907] |
| March 24, 2009 |
| Appellate Division, Second Department |
| Intercounty Supply, Inc., Respondent, v TAP Plumbing &Heating, Inc., Respondent, and Flintlock Construction Services, LLC, et al., Appellants, et al.,Defendant. |
—[*1] Robert J. McGoey, New Rochelle, N.Y., for defendant-respondent.
In an action, inter alia, to recover damages for unjust enrichment, the defendants FlintlockConstruction Services, LLC, Purchase College Foundation Housing Corporation, and UnitedStates Fidelity & Guaranty Company appeal, as limited by their brief, from stated portions of ajudgment of the Supreme Court, Westchester County (Friedman, J.), dated March 30, 2007,which, among other things, after a nonjury trial, is in favor of the defendant TAP Plumbing &Heating, Inc., and against them in the principal sum of $131,019.72, and foreclosed publicimprovement liens filed on the subject property by the plaintiff and the defendant TAP Plumbing& Heating, Inc.
Ordered that the judgment is modified, on the law, (1) by deleting the provision thereofawarding the defendant TAP Plumbing & Heating, Inc., the principal sum of $131,019.72, andsubstituting therefor a provision awarding the defendant TAP Plumbing & Heating, Inc., theprincipal sum of $92,354.16, and (2) by deleting the provision thereof foreclosing the publicimprovement liens filed on the subject property by the plaintiff and the defendant TAP Plumbing& Heating, Inc., and substituting therefor a provision dismissing the causes of action to foreclosethe public improvement liens filed on the subject property and for payment on the bond providedby the defendant United States Fidelity & Guaranty Company; as so modified, the judgment isaffirmed insofar as appealed from, with one bill of costs to the appellants.
This action arises out of the construction of dormitory buildings for the State University ofNew York at Purchase. The plaintiff supplied plumbing and heating materials for the project, andcommenced this action, inter alia, to recover damages for unjust enrichment, alleging that it wasnot [*2]paid for the materials. The general contractor, thedefendant Flintlock Construction Services, LLC (hereinafter Flintlock), cross-claimed againstthe plumbing subcontractor, the defendant TAP Plumbing & Heating, Inc. (hereinafter TAP),alleging, inter alia, that it incurred additional costs due to TAP's delay in completing its portionof the project. TAP cross-claimed against Flintlock alleging, inter alia, breach of contract.
After a nonjury trial, this Court may may render the judgment it finds warranted by the factsand a review of the record as a whole (see Northern Westchester Professional Park Assoc. vTown of Bedford, 60 NY2d 492, 499 [1983]; We're Assoc. Co. v Rodin Sportswear,288 AD2d 465 [2001]; Ancewicz v Western Suffolk BOCES, 282 AD2d 632 [2001]).Here, the trial court erred in finding that the subcontract between Flintlock and TAP containedno specific completion date. However, the court's conclusion that Flintlock was responsible forthe failure to complete the project on time is warranted by the facts, and thus we decline todisturb it.
Flintlock argues that the trial court failed to credit it for the expenditure it incurred when ithad to engage an additional contractor to complete the "Siemens Control System." TAP arguesthat the Siemens System was not within its contractual scope of work. The documentaryevidence adduced at trial reveals that the "Seimens Control System" or the equivalent thereofwas included in the TAP contract. However, the court also properly determined that "the lossesincurred by Flintlock were caused solely by Flintlock and were not due to any fault on the part ofTAP." Moreover, despite the fact that there was testimony from a Flintlock employee that TAPhad completed 70% of its project work, the court reduced the amount of work TAP hadcompleted on the project to only 58%, and this concomitantly reduced the amount of TAP'sdamages. Therefore, the court, in effect, accounted for Flintlock's additional expenditure tocomplete the Siemens System.
Nevertheless, the trial court miscalculated the damages awarded to TAP. The court arrived atits damages award by adding the sum of $306,357.84 (representing 58% of the total value ofcompleting the "phase 1" portion of the work on the project at the time of TAP's termination),plus the sum of $41,851.88 for change orders, plus the sum of $152,810 for materials deliveredto the job site (total $502,019.72), less the sum of $370,000 (the amount paid directly byFlintlock to the plaintiff and a TAP subcontractor), for a total sum of $131,019.72. However, thetotal value of the completed "phase 1" work on the project was $461,538.42, and 58% of thisamount is $267,692.28, whereas the trial court utilized a figure of $306,357.84 in making itsaward. Using instead the correct figure of $267,692.28, TAP's total damages award must bereduced from the sum of $131,019.72 to the sum of $92,354.16.
The causes of action to foreclose public improvement liens filed on the subject property bythe plaintiff and TAP, and for payment on the bond provided by United States Fidelity &Guaranty Company (hereinafter the Surety) should have been dismissed. A public improvementlien filed against a private improvement is improper and invalid (see Matter of T.F. DemiloCorp. [Black Iron-Rebar & Lathing], 187 AD2d 404 [1992]). The evidence at trialestablished that the subject project is a private improvement (see Lien Law § 2[7]). Furthermore, since the lien was invalid, the cause of action against the Surety for paymenton its bond also should have been dismissed (see Matter of Bat-Jac Contr. v Italia Constr.Co., 262 AD2d 314, 315 [1999]).
Purchase College Foundation Housing Corporation's contention that the unjust enrichmentclaims against it should have been dismissed (see Perma Pave Contr. Corp. v Paerdegat Boat& Racquet Club, 156 AD2d 550 [1989]) is not properly before this Court on appeal (seeSprain Brook Manor [*3]Nursing Home v Glazer, 6 AD3d522 [2004]).
The appellants' remaining contentions are unpreserved for appellate review, need not bereached in light of our determination herein, or are without merit. Spolzino, J.P., Santucci,Leventhal and Chambers, JJ., concur.