Wavertree Corp. v. Bellet Constr. Co., 5474

• Court: New York Supreme Court Appellate Division
• Citation: 69 N.Y.S.3d 629,157 A.D.3d 552
• Decision Date: 18 January 2018
• Parties: WAVERTREE CORPORATION, Plaintiff–Appellant, v. BELLET CONSTRUCTION CO., INC., Defendant–Respondent.
• Docket Number: Index 651551/11,5474

157 A.D.3d 552
69 N.Y.S.3d 629

WAVERTREE CORPORATION, Plaintiff–Appellant,
v.
BELLET CONSTRUCTION CO., INC., Defendant–Respondent.

5474
Index 651551/11

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

ENTERED: JANUARY 18, 2018

Anderson & Ochs, LLP, New York (Steven S. Anderson of counsel), for appellant.

Camacho Mauro Mulholland, LLP, New York (Andrea S. Camacho and Wendy Jennings of counsel), for respondent.

Acosta, P.J., Sweeny, Gische, Andrias, Gesmer, JJ.

69 N.Y.S.3d 630

Judgment, Supreme Court, New York County (Gerald Lebovits, J.), entered October 21, 2016, in favor of defendant, upon a jury verdict, and bringing up for review an order, same court (Barbara Jaffe, J.), entered February 20, 2014, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on its delay damages and attorneys' fees claims, unanimously affirmed, without costs.

Both the motion and the trial court properly determined that the jury should resolve the question of whether plaintiff was entitled to delay damages and attorneys' fees based on defendant's breach of the contract, and the jury found that defendant did not breach the contract (see Smith v. Putnam , 145 A.D.2d 383, 385, 535 N.Y.S.2d 725 [1st Dept. 1988], appeal dismissed in part, denied in part 74 N.Y.2d 758, 545 N.Y.S.2d 98, 543 N.E.2d 741 [1989] ; Howard L. Jacobs, P.C. v. Citibank , 92 A.D.2d 786, 459 N.Y.S.2d 781 [1st Dept. 1983], affd 61 N.Y.2d 869, 474 N.Y.S.2d 464, 462 N.E.2d 1182 [1984] ).

A rational jury could also have found, based on the trial testimony, that plaintiff waived these claims when it made the final payment to defendant in full, with the approval of its architect, without deducting the liquidated damage amount and the attorneys' fees, given that the contract provided at § 2.3, that an extension of time to complete the project was defendant's remedy in the event delays resulted from plaintiff's actions.

The motion and trial courts also properly concluded that there were issues of fact as to plaintiff's entitlement to attorneys' fees...