Citnalta Const. Corp. v. Caristo Associates Elec. Contractors, Inc.

• Decision Date: 20 November 1997
• Citation: 664 N.Y.S.2d 438,244 A.D.2d 252
• Parties: , 1997 N.Y. Slip Op. 10,122 CITNALTA CONSTRUCTION CORP., Plaintiff-Appellant, v. CARISTO ASSOCIATES ELECTRICAL CONTRACTORS, INC., et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 438

664 N.Y.S.2d 438

244 A.D.2d 252, 1997 N.Y. Slip Op. 10,122

CITNALTA CONSTRUCTION CORP., Plaintiff-Appellant, v. CARISTO ASSOCIATES ELECTRICAL CONTRACTORS, INC., et al.,

Defendants-Respondents.

Supreme Court, Appellate Division,

First Department.

Nov. 20, 1997.

Thomas D. Czik, for Plaintiff-Appellant.

Larry B. Hollander, for Defendants-Respondents.

Before SULLIVAN, J.P., and MILONAS, WALLACH, WILLIAMS and COLABELLA, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Stephen Crane, J.), entered January 28, 1997, which, to the extent appealed from, granted plaintiff damages for breach of contract in the amount of $223,454.45, unanimously reversed, on the law and the facts, without costs, and the principal amount of the judgment increased from $223,454.45 to $362,024.72. Appeal from order, same court and Justice, entered December 26, 1996, which, to the extent appealed from, denied plaintiff's CPLR 5019(a) motion to correct the judgment, unanimously dismissed, without costs, as academic.

This action was brought by a general contractor against an electrical subcontractor for breach of contract and to recover against a surety under a performance, labor and material payment bond. It resulted in the entry of a default judgment against defendants. Prior to entry of the judgment, plaintiffs, noting errors in the calculation of damages, moved pursuant to CPLR 5019(a) to correct the judgment. The Supreme Court denied the motion and plaintiff appealed both the judgment and the order.

It is clear from the record that payments in the amount of $244,106.77 by plaintiff to defendant subcontractor and change orders to the subcontract in the amount of $105,536.50 were omitted by the trial court in its calculation of damages due plaintiff. We correct the principal amount of the judgment accordingly, since the contractor is entitled to recover the fair market cost of completing the work where the subcontractor has defaulted without substantially performing the subcontract (Tri-Mar Contractors v. ITCO Drywall, Inc., 74 A.D.2d 601, 424 N.Y.S.2d 737), and a "plaintiff is entitled to that compensation which will leave him as well off as he would have been if the contract had been fully performed" (McKegney v. Illinois Surety Co., 180 A.D. 507, 509, 167 N.Y.S. 843). In this instance that compensation, $362,024.72, is measured by the difference between the actual cost to plaintiff to complete the subcontract--payments totalling $244,106.77 to the defaulting original subcontractor, the $1,043,000 paid to the subcontractor who completed the job, and the $80,454.45 paid to various suppliers and electricians--and the subcontract price, $900,000, plus the price of change orders to the subcontract, $105,536.50.

Plaintiff contends on appeal that we should not factor the cost of the change orders into the damages, since "neither CPLR 5522 nor any other statutory or constitutional authority permits an appellate court to exercise any general discretionary power to grant relief to a nonappealing party" (Hecht v. City of New York, 60 N.Y.2d 57, 63, 467 N.Y.S.2d 187, 454 N.E.2d 527; see also, Davis v. Weg, 104 A.D.2d 617, 620, 479 N.Y.S.2d 553). Here, no party appealed the Supreme Court's omission of the change orders in its determination of the value of the subcontract; inclusion of their value benefits defendant surety.

Although Hecht appeared to completely preclude the...