Sear-Brown Associates, P.C. v. Blackwatch Development Corp.

• Decision Date: 12 July 1985
• Docket Number: SEAR-BROWN
• Citation: 492 N.Y.S.2d 266,112 A.D.2d 765
• Parties: ASSOCIATES, P.C., Respondent, v. BLACKWATCH DEVELOPMENT CORP. and J.R. Mascitti Building Corp., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 266

492 N.Y.S.2d 266

112 A.D.2d 765

SEAR-BROWN ASSOCIATES, P.C., Respondent, v. BLACKWATCH DEVELOPMENT CORP. and J.R. Mascitti Building Corp., Appellants.

Supreme Court, Appellate Division Fourth Department.

July 12, 1985.

Sutton, De Leeuw, Clark & Darcy, by Frank Monfredo, Rochester, for appellants.

Harter, Secrest & Emery, by Susan Keefer, Rochester, for respondent.

Before DILLON, P.J., and HANCOCK, DOERR, DENMAN and O'DONNELL, JJ.

MEMORANDUM:

It was error to award judgment to plaintiff on its action for breach of contract on the theory of substantial performance. 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 (see Jacob & Youngs, Inc. v. Kent, 230 N.Y. 239, 129 N.E. 889; American Std. v. Schectman, 80 A.D.2d 318, 439 N.Y.S.2d 529, lv. denied 54 N.Y.2d 604, 443 N.Y.S.2d 1027, 427 N.E.2d 512; Triple M. Roofing Corp. v. Greater Jericho Corp., 43 A.D.2d 594, 349 N.Y.S.2d 771). Plaintiff's failure to perform the remaining items of the contract was intentional and the work which remained to be done was significant. The fact that plaintiff allocated $800 or 13% of the contract price for the remaining work indicates that it was not insubstantial (see, e.g., Hollister v. Mott, 132 N.Y. 18, 29 N.E. 1103; Triple M. Roofing Corp., v. Greater Jericho Corp., supra; Fox v....