Berardi Construction Corp. v. Manshul Construction Corp.

166 A.D.2d 245, 560 N.Y.S.2d 447, 1990 N.Y. App. Div. LEXIS 11733

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 11, 1990
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Gordon Burrows, J.), entered October 2, 1989, which awarded judgment against defendant in favor of plaintiff in the sum of $83,566.41, unanimously affirmed, with costs.

Defendant, a general contractor, recovered a judgment against the New York State Dormitory Authority in another action for costs and damages incurred on a construction project, including $55,370 attributable to work plaintiff had performed as a subcontractor on the same project. When defendant did not pay plaintiff, it instituted the present action. This court, on a prior appeal, granted summary judgment to the plaintiff on the second, third and fourth causes of action for unjust enrichment, constructive trust and money had and received, and remanded the matter for an assessment of damages at which any reduction for the principal amount of plaintiffs claim due to costs or legal fees would be determined. (Berardi Constr. Corp. v Manshul Constr. Corp., 149 AD2d 387, appeal dismissed 74 NY2d 842.)

On remand, the IAS court granted plaintiff judgment in the amount of its claim reduced by 25%, because defendant’s attorneys in the prior action had charged defendant a 25% contingency fee on amounts recovered. We agree that there was insufficient proof to charge plaintiff for any alleged additional legal fees or expenses. Further, in the prior appeal, we necessarily determined that these other expenses should not be applied to any offset of an award of damages to plaintiff. Concur—Kupferman, J. P., Sullivan, Carro and Milonas, JJ.