Bernstein v. Swidunovich

Appellate Division of the Supreme Court of New York

Bernstein v. Swidunovich

20 A.D.2d 883, 248 N.Y.S.2d 841, 1964 N.Y. App. Div. LEXIS 3968

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 23, 1964

StatusPublished

Cited by1 cases

This text of 20 A.D.2d 883 (Bernstein v. Swidunovich) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bernstein v. Swidunovich, 20 A.D.2d 883, 248 N.Y.S.2d 841, 1964 N.Y. App. Div. LEXIS 3968 (N.Y. Ct. App. 1964).

Pincite

Opinion

Judgment directing foreclosure of mechanic’s lien and providing for payment to plaintiff contractor of the balance due under a contract for the renovation of a building unanimously reversed, on the law and in the interest of justice, and a new trial ordered, without costs to either party. On the record made the decision by the Trial Justice would be justified. However, it is evident from the testimony .presented by defendant that there was a failure to establish proof with regard to the condition of the building immediately after plaintiff contractor completed his work, with respect to the value of the installation and cost of aluminum windows rather than wooden windows, and in a number of other, less important items, all of which was relevant in establishing a failure on the part of the contractor to have performed his contract substantially. Under the circumstances a new trial is justified if the risk of substantial injustice is to be avoided. Upon a new trial the court should not be confined as to the issues already determined, except as to the effect of the certificate of occupancy provision in the contract, but the matter may be assessed de novo. Concur — Breitel, J. P., Yalente, McNally, Eager and Steuer, JJ.

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Judgment directing foreclosure of mechanic’s lien and providing for payment to plaintiff contractor of the balance due under a contract for the renovation of a building unanimously reversed, on the law and in the interest of justice, and a new trial ordered, without costs to either party. On the record made the decision by the Trial Justice would be justified. However, it is evident from the testimony .presented by defendant that there was a failure to establish proof with regard to the condition of the building immediately after plaintiff contractor completed his work, with respect to the value of the installation and cost of aluminum windows rather than wooden windows, and in a number of other, less important items, all of which was relevant in establishing a failure on the part of the contractor to have performed his contract substantially. Under the circumstances a new trial is justified if the risk of substantial injustice is to be avoided. Upon a new trial the court should not be confined as to the issues already determined, except as to the effect of the certificate of occupancy provision in the contract, but the matter may be assessed de novo. Concur — Breitel, J. P., Yalente, McNally, Eager and Steuer, JJ.

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Bluebook (online)

20 A.D.2d 883, 248 N.Y.S.2d 841, 1964 N.Y. App. Div. LEXIS 3968, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernstein-v-swidunovich-nyappdiv-1964.

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