Marino v. Lewis

Appellate Division of the Supreme Court of New York

Marino v. Lewis

17 A.D.3d 325, 792 N.Y.S.2d 572, 2005 N.Y. App. Div. LEXIS 3549

Appellate Division of the Supreme Court of the State of New York·Decided April 4, 2005·Published·Cited by 4 cases

Opinion

In an action to recover damages for breach of a construction contract, the plaintiff appeals, as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, Dutchess County (Fagones, J.), dated February 13, 2004, as, in effect, granted that branch of the defendant’s motion which was for summary judgment dismissing that part of the first cause of action which was to recover $17,000 paid to the defendant on the contract.

Ordered that the order is affirmed insofar as appealed from, with costs.

The appropriate measure of damages for defective construction “is the cost to repair the defects or, if the defects are not remediable, the difference in value between a properly constructed structure and that which was in fact built” (Brushton-[326] Moira Cent. School Dist. v Thomas Assoc., 91 NY2d 256, 262 [1998]; see Ferreira v Saccento, 286 AD2d 366 [2001]). Since the complaint alleged that the amount needed to remedy the work performed by the defendant was $5,000, the Supreme Court correctly concluded that she was not also entitled to recover the $17,000 previously paid to him on the contract. Adams, J.P., Santucci, Goldstein and Lifson, JJ., concur.

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In an action to recover damages for breach of a construction contract, the plaintiff appeals, as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, Dutchess County (Fagones, J.), dated February 13, 2004, as, in effect, granted that branch of the defendant’s motion which was for summary judgment dismissing that part of the first cause of action which was to recover $17,000 paid to the defendant on the contract.

Ordered that the order is affirmed insofar as appealed from, with costs.

The appropriate measure of damages for defective construction “is the cost to repair the defects or, if the defects are not remediable, the difference in value between a properly constructed structure and that which was in fact built” (Brushton-[326] Moira Cent. School Dist. v Thomas Assoc., 91 NY2d 256, 262 [1998]; see Ferreira v Saccento, 286 AD2d 366 [2001]). Since the complaint alleged that the amount needed to remedy the work performed by the defendant was $5,000, the Supreme Court correctly concluded that she was not also entitled to recover the $17,000 previously paid to him on the contract. Adams, J.P., Santucci, Goldstein and Lifson, JJ., concur.

Marino v. Lewis, 17 A.D.3d 325, 792 N.Y.S.2d 572, 2005 N.Y. App. Div. LEXIS 3549 (N.Y. Ct. App. 2005).

Pincite

17 A.D.3d 325 (Marino v. Lewis) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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