Sabco Corp. v. Marquise Constr. Corp.

• Decision Date: 24 February 2016
• Citation: 25 N.Y.S.3d 628,136 A.D.3d 1012
• Parties: SABCO CORP., Respondent, v. MARQUISE CONSTRUCTION CORP., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 1012

25 N.Y.S.3d 628

SABCO CORP., Respondent,

v.MARQUISE CONSTRUCTION CORP., et al., Appellants.

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

Feb. 24, 2016.

McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York, N.Y. (Michael C. Delaney and Kevin Brotspies of counsel), for appellants.

Law Offices of Anthony J. Mamo, Jr., PLLC, Sleepy Hollow, N.Y. (Michael G. Santangelo of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from a judgment of the Supreme Court, Westchester County(Jamieson, J.), entered November 21, 2013, which, upon a decision of the same court dated August 30, 2013, made after a nonjury trial, is in favor of the plaintiff and against them in the principal sum of $135,266.

ORDERED that the judgment is reversed, on the law and the facts, with costs, and the complaint is dismissed.

In June 2008, the defendantMarquise Construction Corp.(hereinafter Marquise) entered into a contract with the Albert Wisner Public Library (hereinafter the owner) to construct a new library building (hereinafter the project).In February 2009, Marquise entered into a subcontract with the plaintiffSabco Corp.(hereinafter Sabco), pursuant to which Sabco was to be paid the sum of $377,000 to perform certain carpentry work for the project.Pursuant to the subcontract, Marquise could terminate the subcontract at any time and, upon such termination, the amount due to Sabco would be based upon the percentage of its work that had been completed as of the date of termination.It further provided that the percentage of completion would be "determined and/or resolved by the Owner's determination of the percentage of completion."On June 3, 2009, Marquise terminated the subcontract.As of the termination date, Marquise had paid Sabco $177,795.Sabco then commenced this action seeking, inter alia, to recover the outstanding balance under the subcontract for its work, labor, and services.The Supreme Court determined that Sabco completed 75% of the work.As a result, the court found that Sabco was entitled to 75% of the outstanding bill, or $135,266, plus prejudgment interest.We reverse.

"In reviewing a determination made after a nonjury trial, the power of the Appellate Division is as broad as that of the trial court, and this Court may render the judgment it finds ‘warranted by the facts,’ bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses"(Fernandez v. State of New York,130 A.D.3d 566, 566, 14 N.Y.S.3d 49, quotingNorthern Westchester Professional Park...