| O'Malley v Campione |
| 2010 NY Slip Op 01588 [70 AD3d 595] |
| February 25, 2010 |
| Appellate Division, First Department |
| Peter O'Malley, Respondent, v Phil Campione,Appellant. |
—[*1] Reiss Eisenpress, LLP, New York (Matthew Sheppe of counsel), for respondent.
Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered October 10,2008, after a nonjury trial, which awarded plaintiff damages and directed the entry of a judgmentagainst defendant in the principal amount of $52,900, unanimously reversed, on the law, withoutcosts, and the complaint dismissed. The Clerk is directed to enter judgment dismissing thecomplaint.
The evidence at trial established that plaintiff paid defendant $52,900 to remodel hisapartment and that certain of the work defendant performed was defective. The proper measureof damages for the defective work is the cost to remedy the defect (Bellizzi v HuntleyEstates, 3 NY2d 112 [1957]). While plaintiff's wife's testimony established that twocontractors had been retained to perform certain repairs and that repair estimates had beenobtained from two other contractors, plaintiff presented no evidence indicating the cost of therepairs or the amounts of the estimates. Since plaintiff thus failed to meet his burden of provingthe extent to which he was harmed, he may not recover damages for the harm (Berley Indus.v City of New York, 45 NY2d 683, 686 [1978]).
We note that, contrary to defendant's argument, advanced for the first time in his appellatereply brief, while the fact that he did not have a home improvement license at the time that thework was performed (see Administrative Code of City of NY § 20-387) bars himfrom enforcing the contract (see Sutton v Ohrbach, 198 AD2d 144 [1993]), as the trialcourt found, it [*2]is not a bar to plaintiff's recovery of restitutionfor payments made (see e.g.Brite-N-Up, Inc. v Reno, 7 AD3d 656 [2004]; Goldstein v Gerbano, 158 AD2d671 [1990]). Concur—Mazzarelli, J.P., Acosta, Renwick and Freedman, JJ.