Hudson Val. Paving v Ozdoba

[*1] Hudson Val. Paving v Ozdoba 2004 NY Slip Op 50532(U) Decided on May 14, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 14, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT:DECIDED May 14, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
NO. 2003-547 W C

HUDSON VALLEY PAVING, Appellant, FREDERICK and FRANCESCA

against

OZDOBA, Respondents.

Appeal by plaintiff from so much of a small claims judgment of the Justice Court, Town of North Castle, Westchester County (R. McGoey, J.), entered on January 28, 2003, as dismissed the plaintiff's action.

Judgment unanimously affirmed without costs.
A review of the record in this small claims case indicates that substantial justice was done between the parties according to the rules and principles of substantive law (see UJCA 1807). There is no basis to disturb the trial court's determination that the paving of the defendants' driveway by the plaintiff was not performed in a workmanlike manner. Contrary to the plaintiff's contention, the defects in workmanship were readily discernable from the photographs provided by defendants, and no expert testimony was required. Moreover, plaintiff has failed to establish its entitlement to recover on its claim for additional sums under the contract. The record indicates that despite the defective workmanship, plaintiff substantially performed the contract. Plaintiff's measure of damages is accordingly the unpaid contract price less the fair and reasonable market price for correcting the defects in workmanship or completion of the work (Kaufman v Le Curt Constr. Corp., 196 AD2d 577, 578 [1993]). As a condition to recovery on the basis of substantial performance, the burden was upon the plaintiff to prove the cost of completion or correction of the defective performance (Pilgrim Homes & Garages v Fiore, 75 AD2d 846, 847 [1980]), which it has failed to do.
Decision Date: May 14, 2004