Kaufman v. Le Curt Const. Corp.

• Decision Date: 16 August 1993
• Citation: 196 A.D.2d 577,601 N.Y.S.2d 186
• Parties: Sylvia KAUFMAN, Appellant-Respondent, v. LE CURT CONSTRUCTION CORP., et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 186

601 N.Y.S.2d 186

196 A.D.2d 577

Sylvia KAUFMAN, Appellant-Respondent, v. LE CURT CONSTRUCTION CORP., et al., Respondents-Appellants.

Supreme Court, Appellate Division Second Department.

Aug. 16, 1993.

Schapiro & Reich, Lindenhurst (Perry S. Reich, of counsel), for appellant-respondent.

Corwin & Matthews, Huntington (Charles T. Matthews, of counsel), for respondents-appellants.

Before EIBER, J.P., and O'BRIEN, RITTER and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for breach of contract, the plaintiff appeals, on the ground of inadequacy, from so much of a judgment of the Supreme Court, Suffolk County (Jones, J.), entered August 6, 1990, as, after a nonjury trial, awarded her only $13,158.70 in damages, and the defendants cross-appeal, as limited by their brief, and as further limited by motion papers submitted to this court, from so much of the same judgment as awarded compound interest in the amount of $14,634 for the period September 16, 1981, through May 16, 1990.

ORDERED that the judgment is modified, on the law and the facts, by (1) increasing the award of damages from $13,158.70 to $17,395.65, and (2) deleting the award of compound interest, and substituting therefor a provision awarding simple interest at the statutory rate of 9%; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for entry of an appropriate amended judgment in accordance herewith.

In this case involving, inter alia, claims for damages for breach of a contract to construct a house, the court, after a nonjury trial, found the defendants liable for breaching the contract and failing to complete construction of the house.

Although the court adopted in large part the figures estimated by one of the plaintiff's experts to be the costs for the completion of various work on the house and correction of the defendants' construction defects, the plaintiff finds the award of damages to be inadequate and seeks an increase in the award. The plaintiff homeowner seeks, among other things, to have this court adopt her figure of $106,440.49 as a partial measure of her actual expenses for the proper completion of her home (to which figure the plaintiff seeks to add other damages, for a total recovery of $166,492.11). We reject her contention that the trial court erred in rejecting her claimed "actual costs" as the measure of damages. While the plaintiff is entitled to be compensated for the cost of completion of the construction work and the correction of defects in the defendants' work (see, Kaiser v. Fishman, 138 A.D.2d 456, 458-459, 525 N.Y.S.2d 870; Sarnelli v. Curzio, 104 A.D.2d 552, 553, 479 N.Y.S.2d 257), the proper measure of damages is the "fair and reasonable market price for correcting the defective installation [or completing the construction]" (Lukoff v. Sussex Downs, 131 A.D.2d 442, 443, 516 N.Y.S.2d 471; see also, Bellizzi v. Huntley Estates, 3 N.Y.2d 112, 114-116, 164 N.Y.S.2d 395, 143 N.E.2d 802; City School Dist. of City of Elmira v. McLane Constr. Co., 85 A.D.2d 749, 750, 445 N.Y.S.2d 258; American Std. v. Schectman, 439 N.Y.S.2d 529, 80 A.D.2d 318, 321, 324).

Upon our review of the trial exhibits and the other evidence adduced at trial, we find that $106,440.49 does not constitute the reasonable cost for the...