| Bridge Pub. Relations & Consulting, Inc. v Hylan Elec. Contr.,Inc. |
| 2009 NY Slip Op 06229 [65 AD3d 603] |
| August 18, 2009 |
| Appellate Division, Second Department |
| Bridge Public Relations and Consulting, Inc.,Respondent, v Hylan Electrical Contracting, Inc., Appellant. |
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In an action, inter alia, to recover damages for breach of contract, the defendant appeals froma judgment of the Supreme Court, Richmond County (Gigante, J.), dated October 29, 2007,which, upon an order of the same court dated July 2, 2002, among other things, granting theplaintiff's motion for summary judgment on the issue of liability, upon a decision of the samecourt dated May 7, 2007, made after a nonjury trial on the issue of damages, finding that theplaintiff sustained damages in the principal sum of $191,454.06 and that the plaintiff is entitledto recover predecision interest pursuant to CPLR 5001 from December 1, 1998, and upon anorder of the same court dated August 27, 2007, denying the defendant's motion pursuant toCPLR 4404 (b) to set aside the decision as contrary to the weight of the evidence, is in favor ofthe plaintiff and against it in the total sum of $344,021.57.
Ordered that the judgment is affirmed, without costs or disbursements.
"[A] written agreement that is complete, clear and unambiguous on its face must be enforcedaccording to the plain meaning of its terms" (Greenfield v Philles Records, 98 NY2d562, 569 [2002]; see R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29, 32 [2002];Reiss v Financial Performance Corp., 97 NY2d 195, 198 [2001]). "A contract isunambiguous if the language it uses has 'a definite and precise meaning, unattended by danger ofmisconception in the purport of the [agreement] itself, and concerning which there is noreasonable basis for a difference of opinion' " (Greenfield v Philles Records, 98 NY2d at569, quoting Breed v Insurance Co. of N. Am., 46 NY2d 351, 355 [1978]; see Krystal Investigations & Sec. Bur., Inc.v United Parcel Serv., Inc., 35 AD3d 817, 818 [2006]). It is "for [the] court to say, asmatter of law, whether reasonable [people] may reasonably differ as to such meaning"(Hartigan v Casualty Co. of Am., 227 NY 175, 179 [1919]; see Breed v InsuranceCo. of N. Am., 46 NY2d at 355).
In this case, paragraph 2 of the agreement provides "[the plaintiff] shall receive 50% of allprofits realized . . . on all projects referred and/or procured by [the plaintiff], after10% overhead and all direct or indirect costs." The contract further provides that "[a]nypayments made pursuant to paragraph 3 . . . are understood to be part of the 10%overhead." Paragraph 3 of the agreement states "[the defendant] shall pay to [the plaintiff] thesum of Two Thousand Five Hundred ($2,500) Dollars per week and costed against each job aspart of overhead."
Contrary to the defendant's contention, the Supreme Court properly determined that theagreement is unambiguous and that the weekly payments to the plaintiff were not to be deducted[*2]as independent costs under the agreement, but rather, wereunderstood to comprise a portion of the 10% overhead (see Greenfield v Philles Records,98 NY2d at 569-570; Krystal Investigations & Sec. Bur., Inc., 35 AD3d at 818). Where,as here, an agreement is not ambiguous, "there [is] no reason to resort to extrinsic evidence tointerpret [it]" (Krystal Investigations & Sec. Bur., Inc., 35 AD3d at 818; seeGreenfield v Philles Records, 98 NY2d at 569; Breed v Insurance Co. of N. Am., 46NY2d at 355; Hartigan v Casualty Co. of Am., 227 NY 175, 179 [1919]).
The defendant's contention that the Supreme Court erroneously calculated the plaintiff'sshare of the profits also is without merit. The calculations proffered by the defendant on thisappeal are contradictory and include numerous instances of double counting (see American Bldg. Supply Corp. v AvalonProps., Inc., 32 AD3d 971, 973 [2006]). Moreover, "the court's finding as to damages. . . was supported by the evidence and should not be disturbed" (Rockland Dev. Assoc. v State of NewYork, 15 AD3d 381, 382 [2005]; see American Psych Sys. v Options Ind. PracticeAssn., 276 AD2d 654, 655 [2000]).
Nor did the Supreme Court err in determining that the plaintiff is entitled to recoverpredecision interest from December 1, 1998. Where "damages were incurred at various times,interest shall be computed upon each item from the date it was incurred or upon all of thedamages from a single reasonable intermediate date" (CPLR 5001 [b]; see Baer v Anesthesia Assoc. of MountKisco, LLP, 57 AD3d 817 [2008]; Hayden v P. Zarkadas, P.C., 18 AD3d 500, 501 [2005]; 155Henry Owners Corp. v Lovlyn Realty Co., 231 AD2d 559, 560-561 [1996]). Under thecircumstances presented here, December 1, 1998, constituted a "single reasonable intermediatedate" under CPLR 5001 (b), and the Supreme Court did not improvidently exercise its discretionin calculating the predecision interest (see Fiorello v Raheb, 271 AD2d 402 [2000];Falcone v EDO Corp., 141 AD2d 498, 500 [1988]). Fisher, J.P., Dickerson, Eng andHall, JJ., concur.