Degraw Constr. Grp., Inc. v. HPDC2 Hous. Dev. Fund Co.

• Decision Date: 01 December 2020
• Docket Number: 12504,Case No. 2020-00959,Index No. 306799/12
• Citation: Degraw Constr. Grp., Inc. v. HPDC2 Hous. Dev. Fund Co., 189 A.D.3d 405, 137 N.Y.S.3d 8 (N.Y. App. Div. 2020)
• Parties: DEGRAW CONSTRUCTION GROUP, INC., Plaintiff–Respondent, v. HPDC2 HOUSING DEVELOPMENT FUND COMPANY, INC., et al., Defendants, Joy Construction Corp., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 405

137 N.Y.S.3d 8

DEGRAW CONSTRUCTION GROUP, INC., Plaintiff–Respondent,

v.HPDC2 HOUSING DEVELOPMENT FUND COMPANY, INC., et al., Defendants,Joy Construction Corp., Defendant–Appellant.

12504

Index No. 306799/12

Case No. 2020-00959

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

ENTERED: December 1, 2020

Stanley Kalmon Schlein, Bronx, for appellant.

Zisholtz & Zisholtz, LLP, Garden City(Stuart S. Zisholtz of counsel), for respondent.

Gische, J.P., Webber, Oing, Mendez, JJ.

Judgment, Supreme Court, Bronx County(Julia I. Rodriguez, J.), entered December 18, 2019, bringing up for review an order (same court and Justice), entered on or about December 5, 2019, which, to the extent appealed from as limited by the briefs, held, following a nonjury trial, that plaintiffDeGraw Construction Co. was entitled to breach of contract damages in the amount of $606,987.07, and that defendantJoy Construction Corp. failed to establish its counterclaim for breach of contract, unanimously modified, on the law, to award prejudgment interest to plaintiff, the case remanded to the trial court to determine the proper amount of such interest owing, and as so modified, affirmed, without costs.The appeal and cross appeal from the order are dismissed as subsumed in the appeals from the judgment.

The trial court's decision, which was based largely on credibility determinations, was supported by a fair interpretation of the evidence ( DiLorenzo v. Windermere Owners LLC,174 A.D.3d 102, 107–108, 104 N.Y.S.3d 65[1st Dept.2019] ).Its findings were "warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses"( id. ).

Defendant does not dispute that the parties' subcontract provided that extra work might be performed or that plaintiff performed extra work.Instead, defendant takes issue with the technical aspects of approving such work in the subcontract, including the lack of documentation provided with the change orders.However, oral directions to perform extra work, or the general course of conduct between the parties may modify or eliminate contract provisions that require written authorization ( Penava Mech. Corp. v. Afgo Mech. Servs., Inc.,71 A.D.3d 493, 494, 896 N.Y.S.2d 349[1st Dept.2010] ).The trial court properly found that the change orders were directed, authorized, and performed, and that plaintiff consented to operating outside of the subcontract's technical requirements.

The trial court also...