Sciortino & DiPilato Plumbing & Heating, Inc. v. Sollecito

286 A.D.2d 762, 730 N.Y.S.2d 718, 2001 N.Y. App. Div. LEXIS 8694

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 24, 2001
• Status: Published

Opinion

—In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Westchester County (Friedman, J.), dated April 14, 2000, as, after a nonjury trial, awarded it damages in the principal sum of only $2,521.85.

Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, the provision thereof awarding the plaintiff damages in the principal sum of $2,521.85 is deleted, a provision awarding the plaintiff damages in the principal sum of $8,396.85 is substituted therefor, the provision thereof awarding the defendant a net award of $2,124.96 is deleted, and a provision awarding the plaintiff a net award in the principal sum of $3,750.04 is substituted therefor.

The plaintiff correctly asserts that damages in this case should have been measured by “the contract price, less pay-merits made arid less the cost of completion” (New Era Homes Corp. v Forster, 299 NY 303, 307; see, New Day Bldrs. v SJC Realty, 219 AD2d 623). The Supreme Court erred in limiting the plaintiff to the amount stated in the mechanics hen. Here, the contract price, less payments made, equaled $5,875. Additionally, the Supreme Court found that the plaintiff supplied extras valued at $2,521.85, such that, before applying the offset for the cost of completion, the plaintiff was owed $8,396.85. Reducing the plaintiff’s damages by $4,646.81, the amount the Supreme Court awarded to the defendant on his counterclaim for the reasonable cost to complete the project, entitles the plaintiff to a net award in the principal sum of $3,750.04. Ritter, J. P., S. Miller, Luciano and Crane, JJ., concur.