Jerry B. Wilson Roofing and Painting, Inc. v. Jobco-E.R. Kelly Associates, Inc.

• Decision Date: 12 March 1987
• Docket Number: JOBCO--E
• Citation: 513 N.Y.S.2d 263,128 A.D.2d 953
• Parties: JERRY B. WILSON ROOFING AND PAINTING, INC., et al., Respondents, v.R. KELLY ASSOCIATES, INC., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 263

513 N.Y.S.2d 263

128 A.D.2d 953

JERRY B. WILSON ROOFING AND PAINTING, INC., et al., Respondents, v. JOBCO--E.R. KELLY ASSOCIATES, INC., et al., Appellants.

Supreme Court, Appellate Division Third Department.

March 12, 1987.

Law Offices of Ronald J. Rosenberg (Ronald J. Rosenberg, of counsel), Garden City, for appellants.

James E. Konstanty, Oneonta, for respondents.

Before MAIN, J.P., and MIKOLL, YESAWICH, LEVINE and HARVEY, JJ.

YESAWICH, Justice.

Appeal from two judgments of the Supreme Court in favor of plaintiffs, entered September 25, 1985 in Otsego County, upon a decision of the court at Trial Term (Fischer, J.), with an advisory jury.

This litigation stems from the performance of six separate construction contracts for the installation of insulation and roofing on several buildings in a shopping mall in the Town of Oneonta, Otsego County. Defendants' challenge to the damages awarded--in each instance the full contract price--has substance with respect to two of the contracts: one for the roofing of the main building of the shopping mall, and the other for the roofing of the K-Mart building. The contract amounts were $99,980 and $68,970, respectively; the roofer was plaintiff Wilson Roofing, Inc. (hereinafter plaintiff).

After commencing work on the mall, plaintiff was paid on a monthly basis in accordance with its contract with defendant Jobco--E.R. Kelly Associates, Inc. (hereinafter Jobco), the general contractor. The payments remitted by Jobco covered materials used for work completed, less retainage of 10%. When the May 1983 payment was not forthcoming, plaintiff, in due course, filed mechanic's liens and instituted suit to foreclose the same. A joint trial, with an advisory jury, was had of plaintiff's suit, a separately commenced action initiated by Jobco charging plaintiff with unworkmanlike performance of the roofing contracts, and a third action, wherein plaintiff Jerry B. Wilson Roofing and Painting, Inc., sought to recover from suppliers for allegedly furnishing defective roofing materials used in the projects. The jury found that plaintiffs substantially performed each of the six contracts and the court awarded them full recovery of the contract prices, prompting this appeal. Only defendants' contention, that the evidence adduced at trial did not demonstrate that plaintiff substantially performed the K-Mart and mall roofing jobs and, therefore, it was not entitled to recover the full contract price, merits attention.

Substantial performance connotes performance that is in "compliance with the contract except for minor and relatively unimportant deviations" (22 NY Jur 2d, Contracts § 318 at 195-196; see, Jacob & Youngs v. Kent, 230 N.Y. 239, 129 N.E. 889). Thus, "[i]n order to recover for substantial performance, the plaintiff must establish that its failure to perform was inadvertent or unintentional and that the defects were insubstantial" (Sear-Brown Assoc. v. Blackwatch Dev. Corp., 112 A.D.2d 765, 492 N.Y.S.2d 266). While the determination of whether the performance for which recovery is sought was indeed "substantial" turns upon the facts of each particular case, it is significant to note that in Sear-Brown, the court found that defective work which amounted to 13% of the total contract price was "not...