M. Paladino, Inc. v Flintlock Constr. Servs.

[*1] M. Paladino, Inc. v Flintlock Constr. Servs. 2007 NY Slip Op 50534(U) [15 Misc 3d 127(A)] Decided on March 20, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 20, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McCOOE, J.P., DAVIS, SCHOENFELD, JJ
570115/06.

M. Paladino, Inc., Plaintiff-Respondent,

against

Flintlock Construction Services, LLC., and 9 East 64th Street Associates, LLC., Defendants-Appellants.

Defendants appeal from a judgment of the Civil Court of the City of New York, New York County (Eileen A. Rakower, J.), entered June 24, 2005, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $20,433.

PER CURIAM:
Judgment (Eileen A. Rakower, J.), entered August 24, 2005, modified to vacate the judgment as against defendant 9 East 64th Street Associates, LLC., and as modified, affirmed, with $25 costs.

Plaintiff, a subcontractor, commenced this action against the general contractor and premises owner, seeking, inter alia, damages for breach of contract. Defendants counterclaimed for damages for breach of contract, alleging that plaintiff abandoned the worksite and failed to complete the work.

The trial evidence, fairly interpreted, supports the court's determination that defendant-general contractor breached the subcontract, which required it to pay plaintiff for any additional costs plaintiff incurred as a result of non-access. With respect to its counterclaim, the general contractor failed to prove that plaintiff "abandoned" the worksite or that it had to remedy any alleged defaults by plaintiff under the subcontract (see Northeast Const. Group, Inc. v. Deconstruction, Inc., 16 AD3d 357 [2005], lv denied 5 NY3d 709 [2005]). However, plaintiff failed to demonstrate any basis for recovery against the premises owner in the absence of any express or implied agreement by the owner to pay for the additional costs incurred by plaintiff (see Perma Pave Contracting Corp. v Paerdegat Boat and Racquet Club, Inc., 156 AD2d 550 [1989]), and the judgment is modified accordingly. This constitutes the decision and order of the
court.
Decision Date: March 20, 2007