| Metropolitan Switch Bd. Mfg. Co., Inc. v B & G Elec. Contrs., Div. of B& G Indus., Inc. |
| 2012 NY Slip Op 04324 [96 AD3d 725] |
| June 6, 2012 |
| Appellate Division, Second Department |
| Metropolitan Switch Board Manufacturing Company, Inc.,Appellant, v B & G Electrical Contractors, Division of B & G Industries, Inc.,Respondent. |
—[*1] Farrell Fritz, P.C., Uniondale, N.Y. (Jason S. Samuels and Michael A.H. Schoenberg ofcounsel), for respondent.
In an action to recover in quantum meruit, the plaintiff appeals from a judgment of theSupreme Court, Suffolk County (Baisley, Jr., J.), entered October 4, 2011, which, upon adecision of the same court dated September 26, 2011, made after a nonjury trial, is in favor of thedefendant and against it on the defendant's counterclaim alleging breach of contract in theprincipal sum of $99,370.92.
Ordered that the judgment is modified, on the law, by reducing the award from the principalsum of $99,370.92 to the principal sum of $4,370.92; as so modified, the judgment is affirmed,without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County,for the entry of an appropriate amended judgment.
In reviewing a determination made after a nonjury trial, the power of this Court is as broad asthat of the trial court, and this Court may render the judgment it finds "warranted by the facts,"bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses andhearing the testimony (Northern Westchester Professional Park Assoc. v Town ofBedford, 60 NY2d 492, 499 [1983]).
The Supreme Court properly found that the plaintiff failed to establish a claim in quantummeruit. The plaintiff could not recover in quantum meruit in light of the existence of anenforceable contract governing the subject matter (see Clark-Fitzpatrick, Inc. v Long Is. R.R.Co., 70 NY2d 382, 388-389 [1987]; cf. A. Montilli Plumbing & Heating Corp. v Valentino, 90 AD3d961, 962 [2011]; Wehrum vIllmensee, 74 AD3d 796, 797 [2010]).
The Supreme Court properly determined that the defendant was entitled to recover damagesfrom the plaintiff on its counterclaim alleging breach of contract. The defendant showed, by apreponderance of the credible evidence, that the plaintiff breached its contract with the defendant(see Tri-Mar Contrs. v Itco Drywall, 74 AD2d 601, 602 [1980]). Consequently, thedefendant [*2]is entitled to be made whole and should recover thecost of completing the work that was the subject of the contract and correcting the defects in theplaintiff's work (see Kaufman v Le Curt Constr. Corp., 196 AD2d 577, 578 [1993];Tri-Mar Contrs. v Itco Drywall, 74 AD2d at 602-603). At the same time, the plaintiffmay set off, against the defendant's recovery, the unpaid balance of what was due to it under thecontract (see Tri-Mar Contrs. v Itco Drywall, 74 AD2d at 603). Here, we determine thatthe defendant was entitled to recover the principal sum of $4,370.92, representing the differencebetween the contract price and the defendant's total cost, and we modify the judgmentaccordingly (id.).
The plaintiff's remaining contentions are without merit. Dillon, J.P., Dickerson, Hall andSgroi, JJ., concur.