| Caleb v Sevenson Envtl. Servs., Inc. |
| 2014 NY Slip Op 03057 [117 AD3d 1421] |
| May 2, 2014 |
| Appellate Division, Fourth Department |
[*1]
| Rosalie A. Caleb et al., Respondents, v SevensonEnvironmental Services, Inc., Appellant. |
Magavern Magavern Grimm LLP, Niagara Falls (Edward J. Markarian of counsel),for defendant-appellant.
Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo (R. AnthonyRupp, III, of counsel), for plaintiffs-respondents.
Appeal from a judgment (denominated judgment and order) of the Supreme Court,Orleans County (James P. Punch, A.J.), entered May 2, 2012 in a breach of contractaction. The judgment, among other things, awarded plaintiffs money damages as againstdefendant.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the amount of prejudgment interest awarded from April 18, 1990 andproviding that prejudgment interest is to commence from April 18, 1996, and asmodified the judgment is affirmed without costs.
Memorandum: Defendant appeals from a judgment based on a jury verdict inplaintiffs' favor that awarded money damages in this breach of contract action. We rejectdefendant's contention that Supreme Court erred in charging the jury that it couldconsider, inter alia, whether defendant failed to perform the contract within "a reasonabletime" in determining when plaintiffs' cause of action accrued for purposes of defendant'sstatute of limitations defense. While the parties' contract stated that the work would becompleted by November 30, 1989, the evidence established that after the work was notcompleted by the end of the 1989 work season defendant informed plaintiffs through aprincipal that defendant would "return in the [s]pring of 1990, as early as weatherpermits, to complete" the work required by the contract. Thus, there was a reasonableview of the evidence that the parties "effectively converted the contract into one underwhich performance within a reasonable time was all that was required" (SchenectadySteel Co. v Trimpoli Gen. Constr. Co., 43 AD2d 234, 237 [1974], affd 34NY2d 939 [1974]). As a result, we conclude that "the court's charge accurately stated thelaw as it applie[d] to the facts in this case" (Shumway v Kelley [appeal No. 2],109 AD3d 1092, 1094 [2013], lv denied 22 NY3d 859 [2014] [internal quotationmarks omitted]).
We reject defendant's further contention that there was no evidentiary foundation forthe testimony of plaintiffs' damages expert, a construction cost estimator. It is well settledthat[*2]" 'opinion evidence must be based onfacts in the record or personally known to the witness' " (Hambsch v NewYork City Tr. Auth., 63 NY2d 723, 725 [1984]). It is also well settled, however, thatan expert is permitted to offer opinion testimony based on facts not in evidence where thematerial is " 'of a kind accepted in the profession as reliable in forming aprofessional opinion' " (id. at 726; see Wagman v Bradshaw, 292AD2d 84, 86-87 [2002]). "The professional reliability exception to the hearsay rule'enables an expert witness to provide opinion evidence based on otherwise inadmissiblehearsay, provided it is demonstrated to be the type of material commonly relied on in theprofession' " (Matter ofState of New York v Motzer, 79 AD3d 1687, 1688 [2010], quoting Hinlicky v Dreyfuss, 6 NY3d636, 648 [2006]). Here, the expert's damages testimony was based, in part, onmeasurements contained in a report that was not admitted in evidence, but thosemeasurements were not otherwise disputed or challenged by defendant. Moreover, theexpert testified that the information on which he relied was of the type relied on in hisprofession. Thus, the court properly overruled defendant's objections to the expert'stestimony.
We agree with defendant, however, that the court erred in awarding prejudgmentinterest from April 18, 1990. The jury did not specify a date on which plaintiffs' cause ofaction for breach of contract accrued and where, as here, "the precise date from which tofix interest is ambiguous, 'the date of commencement of the . . . action' is anappropriate date to choose" (Della Pietra v State of New York, 125 AD2d 936,938 [1986], affd 71 NY2d 792 [1988]). We therefore modify the judgment byvacating the amount of prejudgment interest awarded from April 18, 1990 and providingthat prejudgment interest is to commence from April 18, 1996, the date on which theaction was commenced, to May 2, 2012, the date of the judgment. We have considereddefendant's remaining contentions and conclude that they are without merit.Present—Smith, J.P., Fahey, Lindley, Sconiers and Valentino, JJ.