| Hodges v Cusanno |
| 2012 NY Slip Op 02533 [94 AD3d 1168] |
| April 5, 2012 |
| Appellate Division, Third Department |
| Hardy Hodges et al., Respondents, v Richard Cusanno et al.,Appellants. |
—[*1] Matthews & Grieco, Kingston (Robert C. Grieco of counsel), for respondents.
Lahtinen, J. Appeal from a judgment of the Supreme Court (Feeney, J.H.O.), entered July 16,2010 in Ulster County, upon a decision of the court in favor of plaintiffs.
Defendants contracted to provide landscaping and related work at plaintiffs' new home in theTown of New Paltz, Ulster County. The contract set forth three phases of work, including, amongother things, constructing a 1,000 square foot bluestone patio, building a drainage system, andinstalling a 1.5-acre lawn. Plaintiffs paid a total of $35,355 and, unsatisfied with virtually allaspects of defendants' work, they commenced this breach of contract action seeking as damagesthe return of the entire amount they had paid to defendants. After a nonjury trial, Supreme Courtfound a breach, and that plaintiffs had proven damages of $8,500. Damages were comprised of$4,500 for the patio and $2,000 for the lawn because each was smaller than agreed to in thecontract, and an additional $2,000 for unjust enrichment resulting from the poor quality of theportion of the lawn that was installed. Defendants appeal contending that plaintiffs failed topresent sufficient proof to support an award of any damages.
When a breach of contract involves defective or incomplete construction, the proper measureof damages typically "is the cost to repair the defects or, if the defects are not remediable, thedifference in value between a properly constructed structure and that which was in fact built"(Brushton-Moira Cent. School Dist. v Thomas Assoc., 91 NY2d 256, 262 [1998]; seeThompson v McCarthy, 289 AD2d 663, 664 [2001]; 24 Williston on Contracts § 64:3[4th ed]). "This rule is merely a recognition of the precept that damages are intended to place the[*2]injured party in the same position as if there had been nobreach" (Brushton-Moira Cent. School Dist. v Thomas Assoc., 91 NY2d at 262). Theproof regarding damages must be reasonably certain and not based entirely upon speculation (see Haber v Gutmann, 64 AD3d1106, 1108 [2009], lv denied 13 NY3d 711 [2009]).
With regard to the bluestone patio, the contract set forth in writing a cost of $15,000 for a1,000 square foot patio, reflecting a cost of $15 per square foot. Consistent therewith, plaintiffHardy Hodges testified that defendant Richard Cusanno had told him that $15 per square footwas the cost to construct a patio. It is uncontested that defendants installed a patio of only 700square feet instead of the 1,000 square feet called for in the contract. Under the prevailingcircumstances and in light of the proof presented at trial, Supreme Court properly used theparties' agreed upon value of such work in calculating damages on this aspect of the contract at$4,500.
Similarly, the price for installing the lawn was explicitly provided for in the contract at avalue of $6,000 per acre and the amount to be installed was 1½ acres for $9,000. Althoughthere was conflicting proof about the amount of lawn actually installed, Supreme Court made acredibility determination in concluding that plaintiffs received one third of an acre less thanpromised in the contract. We defer to that credibility determination (see Ash v Bollman, 80 AD3d1115, 1118 [2011]) and, by the parties' own contractual standard regarding the value of thework, Supreme Court correctly concluded that plaintiff had been damaged in the amount of$2,000.
We do, however, find merit in defendants' contention that Supreme Court erred in awarding$2,000 for unjust enrichment regarding the poor quality of the portion of the lawn that wasinstalled. Initially, we note that where, as here, "the parties executed a valid and enforceablewritten contract governing a particular subject matter, recovery on a theory of unjust enrichmentfor events arising out of that subject matter is ordinarily precluded" (IDT Corp. v Morgan Stanley Dean Witter& Co., 12 NY3d 132, 142 [2009]; see Stollsteimer v Kohler, 77 AD3d 1259, 1261 [2010]). Moreover,although Hodges stated that he thought he may have spent "thousands of dollars" on topsoil andreseeding, plaintiffs provided no other evidence on this aspect of damages. Simply stated, therewas no proof as to actual amounts spent or the reasonable value of such repairs. Since the proofas to damages incurred in repairing the lawn was, at best, speculative, we reduce the award forsuch aspect of the breach of contract to nominal damages of one dollar (see Freund vWashington Sq. Press, 34 NY2d 379, 383-384 [1974]; Buchwald v Waldron, 183AD2d 1080, 1081 [1992]). The total award of damages must thus be reduced to $6,501.
Peters, J.P., Rose, Stein and Garry, JJ., concur. Ordered that the judgment is modified, on thelaw, without costs, by reducing the award of damages from $8,500 to $6,501 and, as so modified,affirmed.