Miranco Contracting, Inc. v. Perel

• Decision Date: 30 December 2008
• Docket Number: 2007-05633.,2007-05634.
• Citation: 57 A.D.3d 956,2008 NY Slip Op 10595,871 N.Y.S.2d 310
• Parties: MIRANCO CONTRACTING, INC., Respondent, v. ALAN PEREL et al., Appellants, et al., Defendant. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

57 A.D.3d 956

871 N.Y.S.2d 310

2008 NY Slip Op 10595

MIRANCO CONTRACTING, INC., Respondent, v. ALAN PEREL et al., Appellants, et al., Defendant. (And a Third-Party Action.)

2007-05633.

2007-05634.

Appellate Division of the Supreme Court of New York, Second Department.

December 30, 2008.

In an action, inter alia, to recover in quantum merit, the defendants Alan Perel and Lillian H. Associates appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Gigante, J.), dated May 4, 2007, as denied those branches of their motion which were to set aside a jury verdict in favor of the plaintiff and against them in the principal sum of $294,045.70, and for a new trial on the issue of damages and, in effect, for judgment as a matter of law in favor of the defendant Alan Perel, individually, and (2) from a judgment of the same court dated June 1, 2007, which, upon the jury verdict, is in favor of the plaintiff and against them in the principal sum of $189,000.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is reversed, on the facts and in the exercise of discretion, with costs, and a new trial is granted on the issue of damages only, unless, within 30 days after service upon the plaintiff of a copy of this decision and order, it shall file in the office of the Clerk of the Supreme Court, Richmond County, a written stipulation consenting to reduce the damages to the principal sum of $112,203.80, of which $105,045.70 has been paid by the defendant, leaving an unpaid balance of $7,158.10, and to the entry of an amended judgment accordingly; in the event that the plaintiff so stipulates, then the amended judgment, as so reduced and amended, is affirmed, without costs or disbursements. The finding of fact as to the personal liability of the defendant Alan Perel is affirmed.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

The third-party defendant Michael Miranda is president and sole shareholder of the plaintiff Miranco Contracting, Inc. (hereinafter Miranco), a general contractor. Lillian H. Associates (hereinafter Lillian H.) is a limited liability company that owns the subject premises (hereinafter the premises) in Staten Island. The defendant Alan Perel is a neurologist who owns 80% of Lillian H., and who purchased the premises in order to expand his medical practice located next door.

Lillian H. hired Miranco to perform construction at the premises from late 2001 to 2003. Lillian H. paid Miranco a total of $105,045.70 from July 15, 2002 through June 9, 2003 for its work on the project. Miranco submitted to Perel a proposal dated May 29, 2003, for the next phase of construction, with an estimated price of $1,176,000. Perel told Miranda that the price was unacceptable and asked him to reduce it. Miranda responded that he could not lower the price, and Perel informed him that Lillian H. was going to get another contractor to finish the job—the defendant Ultimate Alterations, Inc. (hereinafter Ultimate Alterations).

Miranco commenced this action, inter alia, to recover in quantum meruit against Perel, Lillian H., and Ultimate Alterations. Miranco sought to recover, among other things, the sum of $156,960 in quantum meruit. The jury found that the reasonable value of the work, labor, services, and materials provided by Miranco to Lillian H. and Perel (hereinafter the defendants) was $294,045.70, from which the Supreme Court subtracted the $105,045.70 already paid by Lillian H. to Miranco, resulting in a judgment in the principal sum of $189,000 against the defendants.

The defendants moved to set aside the verdict, for a new trial on the issue of damages, and, in effect, for judgment as a matter of law in favor of Perel personally. In an order dated May 4, 2007 the Supreme Court denied the motion.

The Appellate Division has the power to review the weight of the evidence adduced at trial (see Kinney v Taylor, 305 AD2d 466 [2003]). A jury verdict should not be set aside as against the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of...