Novair Mech. Corp. v. Universal Mgmt. & Contracting Corp.

Decision Date22 February 2011
Citation81 A.D.3d 909,917 N.Y.S.2d 876
CourtNew York Supreme Court — Appellate Division
PartiesNOVAIR MECHANICAL CORP., respondent, v. UNIVERSAL MANAGEMENT & CONTRACTING CORP., appellant.

Joseph P. Dineen, Garden City, N.Y., for appellant.

Shanker Law Group, Mineola, N.Y. (Deborah A. Johnson of counsel), for respondent.

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from (1) an order of the Supreme Court, Queens County (Kitzes, J.), entered October 7, 2009, which denied its motion for summary judgment dismissing the complaint, and (2) a judgment of the same court entered March 5, 2010, which, after a nonjury trial, is in favor of the plaintiff and against it in the principal sum of $18,712.40.

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

ORDERED that the judgment is reversed, on the law, and the complaint is dismissed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

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 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review on the appeal from the judgment ( see CPLR 5501[a][1] ).

"Upon review of a determination rendered after a nonjury trial, this Court's authority is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account in a close case the fact that thetrial judge had the advantage of seeing the witnesses" ( West Orange Mgt., Inc. v. Alaimo, 57 A.D.3d 530, 530, 868 N.Y.S.2d 292; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809). "In 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, 765, 492 N.Y.S.2d 266; see West Orange Mgt., Inc. v. Alaimo, 57 A.D.3d 530, 868 N.Y.S.2d 292; Jerry B. Wilson Roofing & Painting v Jobco-E. R. Kelly Assoc., 128 A.D.2d 953, 954, 513 N.Y.S.2d 263). Here, the defects in the plaintiff's work were substantial and, thus, the Supreme Court should not have concluded that the plaintiff substantially performed the contracted work ( see Jerry B. Wilson Roofing & Painting v Jobco-E. R. Kelly Assoc., 128 A.D.2d at 954, 513 N.Y.S.2d 263; Sear-Brown Assoc. v. Blackwatch Dev. Corp., 112 A.D.2d at 765, 492 N.Y.S.2d 266; Anderson Clayton & Co. v. Alanthus Corp., 91 A.D.2d 985, 457 N.Y.S.2d 578; Pilgrim Homes & Garages v. Fiore, 75 A.D.2d 846, 427 N.Y.S.2d 851; Witt v. Gilmour, 172 App.Div. 110, 115, 158 N.Y.S. 41; Fuchs v. Saladino, 133 App.Div. 710, 715, 118 N.Y.S. 172).

The plaintiff's contention that it was excused from further performance because of the defendant's nonpayment is without merit...

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    • May 11, 2016
    ...Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 ; Novair Mech. Corp. v. Universal Mgt. & Contr. Corp., 81 A.D.3d 909, 909–910, 917 N.Y.S.2d 876 ; Baygold Assoc., Inc. v. Congregation Yetev Lev of Monsey, Inc., 81 A.D.3d 763, 764, 916 N.Y.S.2d 639, affd. ......
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    • June 3, 2015
    ...only 25% of the work performed was defective, the defendant “substantially performed” the contract (Novair Mechanical Corp. v. Universal Mgt. & Contr. Corp., 81 A.D.3d 909, 917 N.Y.S.2d 876 ; see Jerry B. Wilson Roofing & Painting v. Jobco–E.R. Kelly Assoc., 128 A.D.2d 953, 513 N.Y.S.2d 263......
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    • January 11, 2017
    ...Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 ; Novair Mech. Corp. v. Universal Mgt. & Contr. Corp., 81 A.D.3d 909, 909–910, 917 N.Y.S.2d 876 ; Candela v. Byron Chem. Co., Inc., 54 A.D.3d 306, 863 N.Y.S.2d 230 ). It is fundamental to the law of damages......
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    ...for any alleged extra work that was actually covered by the terms of the original contract (see Novair Mech. Corp. v. Universal Mgt. & Contr. Corp., 81 A.D.3d 909, 910, 917 N.Y.S.2d 876 ; Ludemann Elec., Inc. v. Dickran, 74 A.D.3d 1155, 1156, 903 N.Y.S.2d 532 ; Bilotta Constr. Corp. v. Vill......
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