Kaiser v. Fishman

• Decision Date: 18 November 1992
• Citation: 187 A.D.2d 623,590 N.Y.S.2d 230
• Parties: Jay A. KAISER, Appellant-Respondent, v. Jack FISHMAN, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 230

590 N.Y.S.2d 230

187 A.D.2d 623

Jay A. KAISER, Appellant-Respondent, v. Jack FISHMAN, Respondent-Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 18, 1992.

Richard D. Gaines, New York City, for appellant-respondent.

Fischbein, Badillo, Wagner, Itzier, New York City (Jeffrey A. Mitchell, of counsel), for respondent-appellant.

Before BRACKEN, J.P., and HARWOOD, MILLER and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Thompson, J.H.O.), entered May 7, 1990, which, after a nonjury trial on damages, inter alia, awarded him only $60,000 with interest thereon from August 9, 1984, to April 30, 1990, awarded interest on the out-of-pocket expenses the plaintiff incurred from October 1, 1989, and awarded the defendant the contract rate of interest on the principal of the note secured by a second mortgage from May 5, 1982, up until July 2, 1985, and the defendant cross-appeals from so much of the same judgment as awarded the plaintiff $60,000 and computed interest on the plaintiff's mortgage and note at 9% subsequent to July 2, 1985.

ORDERED that the judgment is reversed insofar as appealed and cross-appealed from, on the law and the facts, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for entry of a judgment in accordance herewith.

The facts underlying this appeal are set forth in the decision and order made upon the parties' prior appeal to this court (see, Kaiser v. Fishman, 138 A.D.2d 456, 525 N.Y.S.2d 870). At present it suffices to note that it has been established that the plaintiff contracted with the defendant for the defendant to construct a dwelling, and the defendant knowingly deviated from the plans and specifications provided by the plaintiff. The resulting dwelling is inferior to that called for by the plans and specifications. Having determined that the proper measure of damages is the cost to cure the defects in construction, we remitted the matter to the Supreme Court for a new trial on the issue of damages.

At the retrial on damages, both parties presented the testimony of expert witnesses to establish the cost to cure the defects in the dwelling. The plaintiff's expert witness, James V. Zizzi, a licensed building contractor with experience in construction of beachfront homes set atop pilings, estimated that it would cost $214,764 to bring the dwelling into conformance with the plans and specifications. He identified the work needed to be done, solicited bids from subcontractors, and factored in the costs for general labor and materials. Zizzi factored in the costs of physically moving the house in order to add six additional pilings to the 14 existing pilings to conform to the original plans, as well as reconfiguring the six pilings that were drilled in incorrect locations. Zizzi's estimate did not provide for the replacement of the nonconforming "two by eight" floor joists installed by the defendant. Rather, his estimate included the costs of doubling, tripling, or quadrupling, as necessary, the existing floor joists, to render the structure as solid as it would have been had it been constructed with the "two by ten" floor joists called for in the plans. Zizzi also considered the costs of removing and storing landscaping and took into account that retaining walls and the existing driveway would have to be replaced. Additionally, Zizzi factored in the costs of fixing the insulation so as to conform to the plans, as well as the costs of installing an adequate heating system.

The defendant's expert witness, August LaRuffa, a structural engineer also experienced in the design of homes erected on pilings, submitted an estimate of $30,555 to modify the structure. LaRuffa, who inspected the house on two occasions and who reviewed the original plans, recommended, among other things, the addition of flitch plates to reinforce the "whalers" or main girders notched into the pilings, and emphasized that his recommendations were not structurally necessary but, rather, were required to render the structural elements equal to or better than called for by the plans and specifications. Mr. LaRuffa did not provide an estimate of the cost to upgrade the heating system, nor did his estimate provide for the disturbance of the existing pilings or moving the dwelling to insert additional pilings.

Following a nonjury trial, the court determined that it would be an unreasonable and unconscionable waste to remove or destroy the existing habitable house and that any defects which constituted a breach of contract could be cured by strengthening the existing structure. Essentially adopting the defendant's expert's remedial approach, which called for the repair of the structure without physically lifting it off of its pilings, the court awarded the plaintiff $60,000 in cost-to-cure damages, with interest from August 9, 1984, to April 30, 1990, at 9%, and $16,653.21 for out-of-pocket expenses together with interest of $866.42, calculated at a rate of 9% for the period from October 1, 1989, to April 30, 1990. These amounts were offset by the amount due from the plaintiff to the defendant as of the date of the plaintiff's default, May 5, 1982, under the terms of the purchase money mortgage ($49,849.63) together with interest at 16% from May 5, 1982, to July 2, 1985 ($25,214.90) and interest from July 2, 1985, to April 30, 1990, at 9% ($21,670.27). Based upon those figures, the plaintiff's total award amounted to $11,705.38. Asserting that that award is inadequate, the plaintiff now appeals. The defendant cross-appeals from (1) so much of the judgment as awarded the plaintiff $60,000 in cost-to-cure damages which amount the defendant claims is excessive, and (2) so much of the judgment as computed interest due on the note at 9% after the date of the plaintiff's default. We now reverse the judgment insofar as appealed and cross-appealed from.

Where, on appeal from a judgment rendered after a nonjury trial, it appears that on all of the credible evidence a finding different from that of the trial court would not have been unreasonable, then this court must weigh the relative probative force of conflicting testimony and inferences (see, Shipman v. Words of Power Missionary Enter., 54 A.D.2d 1052, 388 N.Y.S.2d 721). "It is within the power of this court to grant the judgment which, upon the evidence, should have been granted by the trial court" (Lucenti v. Cayuga Apts., 66 A.D.2d 928, 929, 410 N.Y.S.2d 928, affd. 48 N.Y.2d 530, 423 N.Y.S.2d 886, 399 N.E.2d 918). Upon our review of the instant nonjury trial, we find that the trial court erred in holding that the defects in the dwelling could be cured by bracing and amplifying existing support beams and structures without moving the dwelling and inserting additional pilings. The defendant, who at all times was aware of the variations from the plans and specifications, had no license to install...