Douglas Const. Inc. v. Marcais

• Decision Date: 22 May 1997
• Parties: DOUGLAS CONSTRUCTION INC. of Fulton County, Respondent, v. David B. MARCAIS et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 835

657 N.Y.S.2d 835

239 A.D.2d 803

DOUGLAS CONSTRUCTION INC. of Fulton County, Respondent, v. David B. MARCAIS et al., Appellants.

Supreme Court, Appellate Division,

Third Department.

May 22, 1997.

Russo, Walsh & Walsh (Terrence M. Walsh, of counsel), Johnstown, for appellants.

Wood, Holtzworth & Seward (Jeremiah Wood, of counsel), Gloversville, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, SPAIN and CARPINELLO, JJ.

CARPINELLO, Justice.

Appeal from a judgment of the Supreme Court (Best, J.), entered November 22, 1995 in Montgomery County, upon a decision of the court in favor of plaintiff.

Plaintiff, hired by defendants to construct a new home, commenced this action seeking to foreclose a mechanic's lien in the amount of $41,384.64 or, in the alternative, a claim for, inter alia, quantum meruit in the same amount. Defendants counterclaimed for breach of contract and damages for plaintiff's exaggerated lien. Following the denial of defendants' motion for summary judgment and a nonjury trial, Supreme Court found that a July 1988 written contract between the parties was not followed by either party and, accordingly, no longer existed as a valid controlling agreement. The court concluded that plaintiff should recover on the basis of quantum meruit and awarded plaintiff $48,921.64 as the reasonable value of the work performed. Defendants appeal.

Upon our review of Supreme Court's findings of fact and the record as a whole, we find that the court properly concluded that recovery on a quantum meruit basis was warranted. We note that Supreme Court's findings were based in large part on credibility determinations. The court specifically credited the testimony of William Schreivogl, who testified in significant detail that the house, as built, deviated substantially from and was more expensive than the parties' original plans, that the house was "over-built" (i.e., changes were made to the standard plans that were unnecessary), that these revisions and certain construction delays were based on defendants' conduct and that the completed house was of good quality. While this court is not limited to deciding whether the weight of the credible evidence supports the trial court's findings in reviewing a determination following a nonjury trial, deference will be given to the court's assessment of credibility issues (see, Bibeau v. Ward, 228 A.D.2d 943, 944-45, 645 N.Y.S.2d 107, 110, lv denied 89 N.Y.2d 804, 653 N.Y.S.2d 543, 676 N.E.2d 72).

The conduct of the parties, particularly defendants, demonstrate an indisputable mutual departure from the July 1988 written agreement such that it was abandoned (see, e.g., Phoenix Elec. Contr. v. Lehr Constr. Corp., 219 A.D.2d 467, 468, 631 N.Y.S.2d 146, lv denied 87 N.Y.2d 805, 640 N.Y.S.2d 878, 663 N.E.2d 920). Despite the existence of original plans to build the house, significant modifications were made to them throughout construction at the direction of defendants and defendant David B. Marcais' father, who provided substantial instruction and supervision over the project. These changes included constructing the house using balloon framing (i.e., simultaneously constructing the walls of the first and second floors of the structure), using two-by-sixes for studs instead of two-by-fours, as called for under the original plans, and the installation of, inter alia, (1) twice as many collar...