Onorino Bros., Inc. v DeCHIARA

[*1] Onorino Bros., Inc. v DeCHIARA 2004 NY Slip Op 50761(U) Decided on July 6, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 6, 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. 2002-1526 W C

ONORINO BROTHERS, INC., Respondent,

against

SERGIO DeCHIARA, ELAINE DeCHIARA, and SERGIO'S PIZZA AND TRATTORIA, Defendants, -and- BENITO DeCHIARA, Appellant.

Appeal by defendant Benito DeChiara from a decision of the City Court, City of New Rochelle, Westchester County (V. Rippa, J.), dated June 27, 2002, and an amended decision of the same court, dated July 26, 2002, deemed an appeal from a judgment entered August 5, 2002 (see CPLR 5520 [c]) which awarded plaintiff the sum of $16,383.24.

Judgment unanimously affirmed with $25 costs.

Plaintiff commenced this action to recover for work it performed. After trial, a judgment was entered against defendant Benito DeChiara (appellant). On appeal, appellant contends that he is not liable to plaintiff because, among other things, he never entered into a contract with plaintiff.

"It is well settled that where, as here, a case has been tried without a jury, this Court's 'power to review the evidence is as broad as that of the trial court, bearing in mind, of course, [*2]that due regard must be given to the decision of the Trial Judge who was in a position to assess the evidence and the credibility of the witnesses' . . . . Moreover, the trial court's determination will not generally be disturbed on appeal unless it could not have been reached under any fair interpretation of the evidence . . . " (Koslowski v Koslowski, 297 AD2d 784, 784-785 [2002] [citations omitted]; see also Vizzari v Hernandez, 1 AD3d 431 [2003] [same]).

"A contract implied in fact may result as an inference from the facts and circumstances of the case although not formally stated in words . . . and is derived from the 'presumed' intention of the parties as indicated by their conduct" (Jemzura v Jemzura, 36 NY2d 496, 503-504 [1975] [citations omitted]; Matter of Argersinger, 168 AD2d 757, 758 [1990]). However, a court cannot find the existence of a contract
implied in fact if the facts are inconsistent with its existence (see Lubeck Realty v Flintkote Co., 170 AD2d 800 [1991]; see also 22A NY Jur 2d, Contracts § 510).

The evidence adduced at trial established that plaintiff's president and appellant had a long-standing business and personal relationship with each other during which a considerable amount of work was performed by plaintiff on behalf of appellant. No written contract was ever entered into and the work was billed on a time and material basis. Further, the record contained credible evidence that appellant caused plaintiff to be chosen to do the work, that he showed plaintiff the job site, provided plaintiff with the architectural plans and gave plaintiff a $5,000 cash payment shortly after work began. In addition, appellant spent a couple of hours at the job site almost every day and he approved work which was beyond the scope of the architectural plans. Thus, the record contains legally sufficient evidence to support a finding that appellant entered into an implied contract with plaintiff (see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]; Jemzura, 36 NY2d at 503-504; Matter of Argersinger, 168 AD2d at 758). Moreover, inasmuch as a fair interpretation of the evidence supports the court's determination that there was an implied contract, the court's determination that plaintiff
was entitled to a judgment against appellant should not be disturbed (see Vizzari, 1 AD3d at 431; Koslowski, 297 AD2d at 785). Appellant's remaining contentions lack merit.

Accordingly, the judgment should be affirmed. [*3]
Decision Date: July 06, 2004