CGM Constr., Inc. v. Sydor

• Decision Date: 23 November 2016
• Citation: 2016 N.Y. Slip Op. 07895,42 N.Y.S.3d 407,144 A.D.3d 1434
• Parties: CGM CONSTRUCTION, INC., Respondent–Appellant, v. Ihor I. SYDOR, Appellant–Respondent.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1434

42 N.Y.S.3d 407

2016 N.Y. Slip Op. 07895

CGM CONSTRUCTION, INC., Respondent–Appellant,

v.Ihor I. SYDOR, Appellant–Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 23, 2016.

Roemer Wallens Gold Mineaux LLP, Albany (Matthew J. Kelly of counsel), for appellant-respondent.

Fox & Kowalewski LLP, Clifton Park (Laurence I. Fox of counsel), for respondent-appellant.

Before: PETERS, P.J., LYNCH, DEVINE, CLARK and AARONS, JJ.

CLARK, J.

Cross appeal from an order of the Supreme Court (J. Sise, J.), entered January 29, 2015 in Saratoga County, upon a decision of the court partially in favor of plaintiff.

In the spring of 2009, plaintiff entered into a contract with defendant to perform certain renovations to the front porch of a historical building owned by defendant in the Village of Waterford, Saratoga County. The contract provided that defendant would pay plaintiff on “a time and material basis,” with labor being billed at a rate of $48 per hour per laborer and the materials and subcontractors' services to be billed at a zero percent mark-up from plaintiff's costs. The contract further required defendant to pay a $13,500 retainer fee, which defendant paid in May 2009. Thereafter, plaintiff began work on the premises and periodically submitted invoices to defendant for the work performed. After defendant stopped paying the invoices in or around July 2009, plaintiff ceased work on the premises and commenced this breach of contract action to recover the unpaid balance of $80,032.70, plus interest, for work it had completed, as well as reasonable counsel fees and costs. Defendant answered and asserted a counterclaim alleging that plaintiff charged him for labor not performed and materials and equipment not used and that he was entitled to damages in the amount of $130,000 to remediate so much of plaintiff's work as was not completed in a workman-like manner. Defendant also sought counsel fees and costs.

Following a nonjury trial, Supreme Court determined that plaintiff was entitled to recover the balance owed for the labor, material and services it had rendered, but, based upon its finding that plaintiff had used improper lumber for the surface decking of the porch and that the height of the porch stair risers was “inadequate,” reduced plaintiff's damages by the costs of the labor and materials associated with the installation of the decking and awarded defendant damages for the cost of deconstructing the decking and remedying the defects in the stair risers. Defendant appeals, and plaintiff cross-appeals from, as limited by plaintiff's notice of cross appeal, so much of the order as determined that it was not entitled to recover the costs of installing the porch surface decking and was liable to defendant for the cost of removing that decking.

Defendant asserts that plaintiff's work was not performed in a workman-like manner and violated certain provisions of the applicable building codes and, therefore, Supreme Court should not have held him liable for the payment of any portion of the balance owed and, instead, should have determined that he was entitled to recover the cost of remedying all of plaintiff's defective work, not just the porch surface decking and stair risers. Plaintiff counters that the evidence supports Supreme Court's determination that it was not responsible for any defects that resulted from complying with defendant's plans and specifications, but that Supreme Court should have applied the same reasoning to find that it was not liable for any defects caused by the type of lumber that defendant selected for the surface decking.¹ In assessing these competing claims, we note that, when reviewing a determination following a nonjury trial, we independently review the weight of the evidence, while according appropriate deference to the trial court's credibility assessments and factual findings (see AMCAT Global, Inc. v. Greater Binghamton Dev., LLC, 140 A.D.3d 1370, 1372, 33 N.Y.S.3d 555 [2016], lv. denied 28 N.Y.3d 904, 2016 WL 6208978 [2016]; Mary Imogene Bassett Hosp. v. Cannon Design, Inc., 127 A.D.3d 1377, 1378, 9 N.Y.S.3d 687 [2015] ; Deep v. Boies,

121 A.D.3d 1316, 1318–1319, 995 N.Y.S.2d 298 [2014], lv. denied 25 N.Y.3d 903, 2015 WL 1526052 [2015] ).

Initially, Supreme Court's determination that plaintiff accurately charged defendant for the labor, materials and subcontractors' services that it provided is amply supported by the weight of the evidence. The testimony, as credited by Supreme Court, established that the scope of the project initially involved supporting the existing roof structure of the building and repairing the columns and piers, but that it later dramatically changed to involve a complete demolition of the existing structure, digging below grade and reconstructing the columns, piers and decks. In addition, plaintiff provided defendant with electrical, plumbing and tile work and also cleared large amounts of debris from the basement and attic of the building. Plaintiff produced as witnesses all but four of the individuals who performed work on the premises and submitted into evidence each of their time sheets. Supreme Court found these witnesses to have credibly testified as to the accuracy and completeness of their respective time sheets, and we will not disturb this credibility determination on appeal.

We thus turn to the question of whether plaintiff is liable to defendant for the alleged defects in its work. In contrast to a performance specification contract, which affords a contractor the freedom to choose the materials and methods employed to achieve a specified result, a design specification contract requires a contractor to use the materials, methods and design dictated by the owner, without bearing any “responsibility if the design proves inadequate to achieve the intended result” (Fruin–Colnon Corp. v. Niagara Frontier Transp. Auth., 180 A.D.2d 222, 229–230, 585 N.Y.S.2d 248 [1992] ; see MacKnight Flintic Stone Co. v. Mayor of City of N.Y., 160 N.Y. 72, 82, 54 N.E. 661 [1913] ; Hayward Baker, Inc. v. C.O. Falter Constr. Corp., 104 A.D.3d 1253, 1254, 960 N.Y.S.2d 764 [2013] ). In other words, when there is a design specification contract, a contractor follows the architectural plans and specifications provided by an owner, and the contractor will not be responsible for the consequences of defects in such plans and specifications or be prevented from recovering contractually-agreed upon payments for work completed in compliance with them (see U.S. v. Spearin, 248 U.S. 132, 136, 39 S.Ct. 59, 63 L.Ed. 166 [1918] ; MacKnight Flintic Stone Co. v. Mayor of City of N.Y., 160 N.Y. at 82, 54 N.E. 661 ; Larchmont Nurseries, Inc. v. Daly, 33 A.D.3d 872, 874, 827 N.Y.S.2d 56 [2006] ; Fruin–Colnon Corp. v. Niagara Frontier Transp. Auth., 180 A.D.2d at 229–230, 585 N.Y.S.2d 248 ; Ferrari v. Barleo Homes, 112 A.D.2d 137, 137, 490...