Kumar v Reyes Intl. Inc.

[*1] Kumar v Reyes Intl. Inc. 2004 NY Slip Op 51554(U) Decided on December 8, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: December 8, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : ARONIN, J.P., PATTERSON and RIOS, JJ.
2003-1633 Q C

KRISHAN KUMAR, Appellant,

against

REYES INTERNATIONAL INCORPORATED, Respondent, -and- THOMAS REYES, Defendant.

Appeal by plaintiff from a decision of the Civil Court, Queens County (J. Golia, J.), dated July 18, 2003, deemed (CPLR 5520 [c]) to be from the judgment entered January 22, 2004, after a nonjury trial, awarding defendant Reyes International Incorporated the principal sum of $16,300 on its counterclaim.

Judgment unanimously modified by reducing the amount of the award in favor of defendant to the principal sum of $13,300; as so modified, affirmed without costs.

Defendant Reyes International Incorporated (RII) contends that it had an oral contract with plaintiff to renovate the property located on 162nd Street, whereas plaintiff asserts that he had no such contract with RII, he did not own said property, and any contract regarding the property was between RII and his daughter, who was the owner of the property. It is uncontroverted that plaintiff did not allow RII to complete the renovation. Upon a review of the record, we find that the conclusion of the court below that an oral contract existed between [*2]plaintiff and RII could have been reached under a fair interpretation of the evidence (see Northern Westchester Professional Park Assoc., 60 NY2d 492, 499 [1983]; Perez v Garcia, 304 AD2d 544 [2003]). However, the court incorrectly measured the damages.

A review of the trial testimony indicates that RII sought to recover the value of
the work it actually completed. The testimony adduced at trial indicates that the contract price was $29,300, RII received a total of $13,000 from plaintiff, completed 90% to 95% of the job, and it would cost an additional $2,000 to $3,000 to complete
the job. Consequently, the unpaid part of the services RII rendered under the contract as testified to by defendant is $13,300 ($29,300 - $13,000 - $3,000). While RII was entitled to also recover damages flowing from the failure to be allowed to complete the contract, it did not establish same (see Raile v Peerless American Products Co., 192 App Div 506 [1920]; Sterling v Cambria Constr. Corp., 2003 NY Slip Op 50740[U] [App Term, 2d & 11th Jud Dists). In view of the foregoing, the judgment in favor of defendant is reduced accordingly. Plaintiff's remaining contentions lack merit or were not preserved for appellate review.
Decision Date: December 08, 2004