| Ash v Bollman |
| 2011 NY Slip Op 00465 [80 AD3d 1115] |
| January 27, 2011 |
| Appellate Division, Third Department |
| William Ash Jr. et al., Respondents, v Frederick L.Bollman, Appellant. |
—[*1] Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Eileen M. Haynes of counsel), forrespondents.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Krogmann, J.), entered February4, 2010 in Warren County, upon a decision of the court in favor of plaintiffs.
In 2002, plaintiffs contracted to purchase certain vacant real property along the SchroonRiver in the Town of Chester, Warren County consisting of two separate lots, a northerly lot(hereinafter lot 1) and a southerly lot (hereinafter lot 2). Due to its location, the property issubject to Adirondack Park Agency (hereinafter APA) jurisdiction, and the sale was thereforecontingent on the APA's approval of plaintiffs' building plans. In August 2002, plaintiffssubmitted an application to the APA for a permit to, among other things, construct a singlefamily dwelling on lot 1. In January 2003, prior to the APA's approval of their application,plaintiffs contacted defendant regarding certain excavation work to be conducted on lot 1.Defendant provided plaintiffs with a quote of $14,000 for clearing lot 1, constructing a driveway,excavating and backfilling the basement, and installing a septic system and water and powerlines. The APA thereafter issued a permit conditionally authorizing the construction of a singlefamily dwelling with a four-foot-wide footpath to the river and a seasonal floating dock. After thesale closed in March 2003, defendant commenced clearing and excavation work on lot 1. In thefall of 2003, plaintiffs contracted with Sheridan Hammond to build the residence. Hammondcommenced work, but left the job prior to completing the residence, which required plaintiffs tohire other individuals to complete the job. After the residence was constructed, plaintiffs [*2]contracted with Neil Duell to perform certain other work on theproperty, such as rough regrading, clearing of debris and widening a pathway from the house tothe river.
In December 2004, the APA notified plaintiffs of certain permit violations, including that thedriveway was too wide and not constructed in the required "lazy 'S' " configuration, wetlands hadbeen filled in, the footpath to the river was too wide and not shaped in a "lazy 'S' " configuration,there was unauthorized cutting of vegetation on both lots 1 and 2, the residence was constructedtoo close to the mean high water mark of the river, the electrical lines were installed overhead,and the exterior lighting on the house was improperly directed toward the river. Ultimately,plaintiffs were able to reach a settlement with the APA, which provided that, in addition tocertain remedial work to be performed on the property, plaintiffs would pay a civil fine in theamount of $3,500. Plaintiffs then contracted with Duell to perform such remediation work and,by August 2005, the property was in compliance with the terms of the settlement agreement.
In 2005, plaintiffs commenced this action, claiming breach of contract, breach of warrantyand negligence, and seeking $100,000 in damages. After a nonjury trial, Supreme Courtdetermined that "defendant performed certain portions of his work in a careless andunworkmanlike manner and not in compliance with [the] APA [p]ermit," and awarded plaintiffsdamages in the amount of $21,735, which represents, among other things, the full amount of theAPA civil penalty and certain remediation costs. Defendant now appeals, contending thatSupreme Court's award of damages was against the weight of and insufficiently supported by theevidence.
When reviewing a decision rendered after a nonjury trial, this Court, while according duedeference to the trial court's factual findings (see Rini v Kenn-Schl, LLC, 64 AD3d 988, 989 [2009], lvdenied 13 NY3d 711 [2009]), has broad authority to "independently review the probativeweight of the evidence, together with the reasonable inferences that may be drawn therefrom, andgrant the judgment warranted by the record" (Shon v State of New York, 75 AD3d 1035, 1036 [2010]; see Sterling v Sterling, 21 AD3d663, 664-665 [2005]; but see Thoreson v Penthouse Intl., 80 NY2d 490, 495[1992]). Here, we agree with defendant that Supreme Court erred in holding him responsible forthe full amount of the APA fine. The evidence shows that the permit violations encompassedwork done at the site by all three contractors—defendant, Hammond and Duell. Forexample, Duell testified, and plaintiff William Ash conceded, that it was Duell who filled in thewetlands and enlarged the footpath in violation of the APA permit. Duell also admitted toremoving fill material from lot 2 to fill in the wetlands on lot 1 and to removing trees from lot 2.Finally, Ash testified that defendant did not have anything to do with the offending exterior lightson the residence. Accordingly, as defendant was not wholly responsible for the APA violations, itwas error to hold defendant responsible for the entire $3,500 civil penalty.
We next address defendant's argument that he should not be held responsible for all of thecosts of the remedial work performed on the property by Duell. In a case of defectiveconstruction, it is the plaintiff's burden to submit adequate evidence concerning damages (see Feldin v Doty, 45 AD3d 1225,1226 [2007]), the appropriate measure of which is " 'the [reasonable market] cost to repair thedefects' if the defects are reparable" (Caggianelli v Sontheimer, 46 AD3d 1206, 1207 [2007], quotingBrushton-Moira Cent. School Dist. v Thomas Assoc., 91 NY2d 256, 261-262 [1998]).Here, defendant was hired to, among other things, clear and grade the lot, construct the driveway,excavate the basement and install the power line. [*3]Duell wasinitially hired by plaintiffs to correct certain work performed by defendant, and then to performadditional work of a remedial nature to address the APA violations. However, some of the workperformed by Duell—such as filling in wetlands, widening the footpath and removing treesfrom lot 2—were themselves the subject of the APA violations. While Duell chargedplaintiffs a total sum of $20,560[FN1]to accommodate for Duell's violations of the APA permit, Supreme Court subtracted $4,900 fromthat figure, which was the amount that Duell testified was the cost associated with remedyingthose violations attributable to his own conduct.[FN2]
In according the appropriate deference to Supreme Court's credibility assessments, and"[g]iven the absence of any record evidence suggesting that [Duell's] customary charges for suchwork do not represent the reasonable market cost" (Caggianelli v Sontheimer, 46 AD3dat 1208), we find that Supreme Court did not err in awarding plaintiffs damages for remediationwork performed by Duell, less costs associated with the remediation of Duell's own violations ofthe APA permit. We likewise find that, given Supreme Court's determination that defendant did,in fact, receive a copy of the APA permit, and given defendant's admission that he was generallyaware of the APA's jurisdiction over the property, Supreme Court did not err in awardingplaintiffs remedial costs necessary to bury the overhead electrical lines. Finally, inasmuch asdefendant failed to make a specific objection to the admissibility of Duell's $5,000 invoice,defendant's argument that Supreme Court erred in awarding damages that were not specified inplaintiffs' bill of particulars has not been properly preserved for review (see Liuni vHaubert, 289 AD2d 729, 729 [2001]; Pilon v Pilon, 278 AD2d 760, 760 [2000];Rubio v Reilly, 44 AD2d 592, 592 [1974]).
Peters, J.P., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the judgment ismodified, on the facts, without costs, by reversing so much thereof as granted plaintiffs damagesin the amount of $3,500, which represents the entire civil fine imposed by the Adirondack ParkAgency; matter remitted to the Supreme Court for further proceedings not inconsistent with thisCourt's decision; and, as so modified, affirmed.
Footnote 1: This figure represented somework completed by Duell prior to issuance of the APA violations and the rest done inconjunction with the APA settlement agreement.
Footnote 2: Notably, none of Duell'sinvoices indicates that charges related to the exterior lights on the residence were included.