| Evans-Freke v Showcase Contr. Corp. |
| 2011 NY Slip Op 05448 [85 AD3d 961] |
| June 21, 2011 |
| Appellate Division, Second Department |
| Stephen Evans-Freke, Respondent, v ShowcaseContracting Corp., Appellant, et al., Defendant. (And RelatedActions.) |
—[*1] Blustein, Shapiro, Rich & Barone, LLP, Goshen, N.Y. (Gardiner S. Barone of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the defendant ShowcaseContracting Corp. appeals from so much of a judgment of the Supreme Court, Orange County(Pano Z. Patsalos, J.), dated March 10, 2010, as, after a nonjury trial on the plaintiff's cause ofaction to recover damages for breach of contract and its fourth counterclaim to recover inquantum meruit, is in favor of the plaintiff in and against it in the principal sum of $47,258.
Ordered that the judgment is reversed insofar as appealed from, on the law and the facts, withcosts, and the matter is remitted to the Supreme Court, Orange County, for the entry of anappropriate amended judgment in accordance herewith.
The plaintiff hired the defendant Showcase Contracting Corp. (hereafter Showcase) toperform renovation and restoration work on his residence, pursuant to a written agreement datedAugust 20, 1999 (hereinafter the agreement). The agreement contained such agreed upon termsas hourly labor rates, and provided for overhead and profit markups of 10% and 5%, respectively.However, the agreement did not specify the full scope of work to be performed. Showcaseworked on the project for approximately three years, during which time the plaintiff was billedfor the work. Despite paying approximately $6.5 million to Showcase, the plaintiff becamedelinquent in his payments in the sum of $1,350,084. On October 24, 2004, the plaintiffterminated the agreement and commenced this action alleging, inter alia, that Showcaseoverbilled him and performed the work poorly. Showcase counterclaimed to recover the balanceit was owed under the alternative theories of breach of contract and quantum meruit. Showcaselater conceded that the agreement was unenforceable because it violated General Business Law§ 771 and, therefore, it was relegated to recovery in quantum meruit. Following a nonjurytrial, the trial court rejected the plaintiff's claims pertaining to, among other things, poorworkmanship, and found that the hourly rates charged by Showcase were fair and reasonable, andthat its invoices were not the result of overbilling. The trial court determined that it was requiredto apply an actual-cost-of-labor analysis to the reasonable-value-of-services element ofShowcase's quantum meruit counterclaim, resulting in an overpayment by the plaintiff toShowcase in the principal sum of $47,258. On appeal, Showcase contends, among other things,that the trial court applied the wrong measure of quantum meruit recovery.[*2]
The elements of a cause of action sounding in quantummeruit are (1) performance of services in good faith, (2) acceptance of services by the person towhom they are rendered, (3) expectation of compensation therefor, and (4) reasonable value ofthe services rendered (see Wehrum vIllmensee, 74 AD3d 796, 797 [2010]; AHA Sales, Inc. v Creative Bath Prods., Inc., 58 AD3d 6, 19[2008]).
In reviewing a determination made after a nonjury trial, the power of the Appellate Divisionis as broad as that of the trial court, and it may render the judgment it finds warranted by thefacts, taking into account that in a close case the trial judge had the advantage of seeing andhearing the witnesses (see Northern Westchester Professional Park Assoc. v Town ofBedford, 60 NY2d 492, 499 [1983]; Novair Mech. Corp. v Universal Mgt. & Contr. Corp., 81 AD3d909, 909-910 [2011]; BaygoldAssoc., Inc. v Congregation Yetev Lev of Monsey, Inc., 81 AD3d 763, 764 [2011],lv granted 2011 NY Slip Op 75138 [2011]). Exercising that power, we find, contrary tothe trial court's determination, that under the unique circumstances of this case, the trial courtwas not required to apply an actual-cost-of-labor analysis in determining the reasonable value ofShowcase's services. The reasonable value of Showcase's services was established by thepreviously agreed upon hourly labor rates, which, according to the undisputed trial evidence,were within the industry standard, were lower than the rates charged by Showcase's replacement,and were supported by the invoices admitted at trial (see Paul F. Vitale, Inc. v Parker's Grille, Inc., 23 AD3d 1147[2005]; United Bldg. MaintenanceAssoc., Inc. v 510 Fifth Ave. LLC, 18 AD3d 333 [2005]; Frank v Feiss, 266AD2d 825 [1999]; see also Capital Heat,Inc. v Buchheit, 46 AD3d 1419 [2007]). Accordingly, on remittal, Showcase is entitledto judgment in its favor and against the plaintiff on its fourth counterclaim for recovery inquantum meruit, in the principal sum of $1,350,084, plus statutory interest from October 24,2002.
Showcase's remaining contentions are without merit. Mastro, J.P., Florio, Belen andChambers, JJ., concur.