Bellizzi v. Huntley Estates, Inc.

• Decision Date: 03 July 1957
• Citation: 164 N.Y.S.2d 395,3 N.Y.2d 112
• Parties: , 143 N.E.2d 802 John A. BELLIZZI, Appellant, v. HUNTLEY ESTATES, Inc., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 395

164 N.Y.S.2d 395

3 N.Y.2d 112, 143 N.E.2d 802

John A. BELLIZZI, Appellant, v. HUNTLEY ESTATES, Inc., Respondent.

Court of Appeals of New York.

July 3, 1957.

Norbert M. Phillipps and Michael L. Polichetti, New York City, and Alfred S. Schechter, White Plains, for appellant.

Walter B. Solinger, II, Mount Vernon, for respondent.

DYE, Judge.

The defendant-respondent, a real estate developer, on or about August 19, 1950, contracted to sell to the plaintiff-appellant a lot designated as No. 235 in its development and to build a house thereon in accordance with its demonstration model known as 'The 1951 Kent' which, among other features, had an attached garage with an access driveway substantially at street level. When the construction work was commenced, the defendant encountered rock close to the surface and, instead of excavating same, as might have been done without too much trouble at the time, it placed the house thereon, with the result that from the entrance of the garage to the street, a distance of 43 feet, there was a difference in elevation of 9 feet and 8 inches. This amounted to a 22 1/2% grade, which is so steep that the driveway cannot be used safely and conveniently. As a matter of fact, the evidence shows that a grade of 12% is considered the permissive maximum. While the plans are silent as to the grade of the driveway, the defendant does not now claim that the grade of the existing driveway is reasonable or that plaintiff has no cause for complaint. It defends against plaintiff's claim for damages on the sole ground that the trial court erred when it excluded evidence offered by it as to the value of the property and should not have refused to charge that the measure of damages 'is the difference between the value of the building as constructed and its value had it been constructed conformably to the contract or the cost of repairs, whichever is the lesser.' Instead, the trial court charged in substance that the measure of damage is 'the fair and reasonable cost to remedy the defect in this controversy or to get a reasonably usable driveway'.

The Appellate Division adopted the defendant's contention largely in reliance on Jacob & Youngs v. Kent, 230 N.Y. 239, 244, 129 N.E. 889, 891, 23 A.L.R. 1429. In that case, we had applied the 'difference in value' rule simply because the proof failed to show any substantial damage or loss in value, since the wrought iron galvanized pipe, as furnished, was substantially the same in quality, weight, market price, serviceability and appearance as pipe of 'Reading' manufacture called for in the contract specifications and that the cost of replacing same with the 'Reading' pipe as specified 'would be great, but the difference in value * * * would be either nominal or nothing'; in other words, replacement of the pipe, under the circumstances in that case, would have constituted economic waste.

However, this litigation poses an entirely different kind of breach, the consequence of which is to burden plaintiff with an unusable, unsafe and unsightly driveway. While it is unfortunate that the defendant elected to build the garage at an unsuitable elevation in order to avoid the cost of excavating unforeseen rock and that to correct the defect will now cost much more than initially,...