F.W. Sims, Inc. v. T. Moriarty & Son, Inc.

265 A.D.2d 234, 696 N.Y.S.2d 453, 1999 N.Y. App. Div. LEXIS 10647

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 1999
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Martin Evans, J.H.O.), entered September 2, 1998, after a nonjury trial, which, to the extent appealed from, limited plaintiffs recovery of delay damages to the principal sum of $4,095, unanimously affirmed, without costs.

We agree with the trial court that “total cost” method of calculating construction delay damages (see, Fehlhaber Corp. & Horn Constr. Co. v State of New York, 69 AD2d 362, 368) was inapplicable under the particular circumstances of this case, and that plaintiff did not otherwise sufficiently prove delay-caused labor costs by non-speculative evidence (see, Mid-State Precast Sys. v Corbetta Constr. Co., 202 AD2d 702, 704, lv dismissed 84 NY2d 923, 86 NY2d 855). We have considered plaintiffs remaining arguments and find them unavailing. Concur — Sullivan, J. P., Nardelli, Tom, Mazzarelli and Friedman, JJ.