Citation Numbers: 296 A.D.2d 723, 745 N.Y.S.2d 146, 2002 N.Y. App. Div. LEXIS 7485
Judges: Carpinello
Filed Date: 7/18/2002
Status: Precedential
Modified Date: 11/1/2024
Appeals (1) from an order of the Supreme Court (Viscardi, J.), entered January 2, 2001 in Washington County, upon a decision of the court in favor of plaintiffs, and (2) from the judgment entered thereon.
Pursuant to a contract executed by the parties in August 1997, defendant agreed to construct a home for $134,500, a price which included the land. Although the contract required a down payment of $33,500, plaintiff Sheridan Bartz (hereinafter plaintiff) gave defendant a check for $50,000 based upon the parties’ understanding that there would be changes to the contract’s specifications, including an increase in the width of the house. In addition, plaintiffs obtained a construction loan in the amount of $100,000, to be released to them in five scheduled payments. By the end of November 1997, defendant had received the proceeds of three of the scheduled payments as he progressed through various stages of construction. When the bank released the fourth scheduled payment together with a portion of the fifth payment, plaintiff refused to sign the check over to defendant based upon his concern that defendant had not completed all of the required work. Although plaintiff relented and delivered all of the fourth scheduled payment to defendant the next day, defendant filed a mechanic’s lien against the property in the amount of $35,800 and ceased work on the home.
Defendant’s claim of impropriety and bias on the part of the Trial Judge has no merit, based as it is on facts outside the record. In addition, our own review of the record discloses nothing to suggest that Supreme Court’s decision was affected by undue influence or bias. Turning to the merits of this dispute, we find no basis for defendant’s claim that plaintiff frustrated his ability to construct the home within the time required by the contract.
To the contrary, the contract itself expressly provided for changes and plaintiffs’ expert, a contractor with over 30 years of experience, testified that neither the number nor the nature of the changes sought by plaintiff was unusual. In contrast to defendant’s testimony regarding the effect of the changes, the record contains a list of agreed to change orders he himself prepared in late November 1997 describing the changes to date, noting that changes during construction were permitted and listing the delays to date, only a few days of which could be attributed to the changes. Defendant’s claim that plaintiff refused to pay for these changes is contradicted by plaintiff’s trial testimony acknowledging his obligation to pay for the cost of changes as completed and by his payment of a sum in excess of the contract down payment to be applied toward anticipated changes. Supreme Court’s finding that it was defendant who breached the contract by failing to complete the project is based largely on a determination of the credibility of the witnesses’ testimony and our review of the record discloses no basis to disturb the finding (see, Silverman v Mergentime Corp./J.F. White, Inc., 252 AD2d 925).
Although defendant does not object to the overall methodol
The contract included allowances for kitchen cabinets with countertops, a fireplace and appliances, and the changes contained an increase in the kitchen and fireplace allowances. The evidence established that plaintiffs had selected an upgraded kitchen costing in excess of $14,000 which had to be specially ordered and that defendant cancelled the order. Plaintiff testified that while completing the home, he was running out of money and, therefore, purchased what he described as throw-away cabinets and the cheapest countertop he could find, for a total cost of just over $2,000. In addition, no fireplace was ever installed and the expenses to complete the home submitted by plaintiffs did not include the cost of appliances. In determining the amount that defendant should be credited for the balance due on the contract, Supreme Court reduced the total contract price by the amount of the fireplace and appliance allowances and the amount that the kitchen allowance exceeded the cost of the kitchen actually installed by plaintiffs.
We see no error in Supreme Court’s adjustment. The difference between the total contract price with changes and the amount actually paid to defendant represents the amount it would have cost plaintiffs if defendant had fulfilled his contractual obligations, a cost which would have produced a home with a $14,000 kitchen and a fireplace. However, plaintiffs’ actual cost to complete the home included a far less expensive kitchen and no fireplace. Accordingly, defendant should not receive credit for the fireplace allowance or the full amount of the kitchen allowance. Similarly, inasmuch as plaintiffs’ actual cost to complete the home did not include an expense for appliances, defendant should not receive credit for the appliance allowance. Since the damage award was based on the reduced cost to complete the home without a fireplace, with a less expensive kitchen and with no charge for appliances, defendant should not be credited with the contractual allowances for those items.
Cardona, P.J., Peters and Lahtinen, JJ., concur. Ordered that the order and judgment are modified, on the law and the facts, without costs, by reducing the damages awarded to plaintiffs by $7,081.68, and, as so modified, affirmed.
The contract contained a provision which required completion of the home within 60 to 90 days and established liquidated damages in the amount of $500 per day for every day beyond 100 days that the home remained incomplete. Supreme Court found the liquidated damages provision to be a penalty and refused to enforce it, a ruling which is not an issue on this appeal.