A Richmond County Stucco & Stone, LLC v Lemchuk

[*1] A Richmond County Stucco & Stone, LLC v Lemchuk 2012 NY Slip Op 51927(U) Decided on October 5, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and SOLOMON, JJ
2011-980 RI C.

A Richmond County Stucco & Stone, LLC, Respondent,

against

Yelena Lemchuk, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Mary Kim Dollard, J.), entered January 15, 2010. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $5,000.

ORDERED that the judgment is modified by reducing the amount awarded to plaintiff to the principal sum of $3,255; as so modified, the judgment is affirmed, without costs.

In April 2009, defendant hired plaintiff to install pavers, stone and brick. The contract provided that any dispute arising between the parties would be resolved by
arbitration. The contract price for the work and materials totaled $36,770. In June 2009, the parties executed a "Change of Work Order," which provided for the installation of additional stone. The "Change of Work Order" stated that "[a]ll disputes of change of work orders will be settled in small claims court." The total price for the additional installation was $3,255. Thereafter, plaintiff commenced this small claims action to recover the sum of $5,000 for breach of contract. After three adjournments, the case came on for trial and, at the calendar call, defendant sought to have the matter resolved by arbitration pursuant to the original agreement. The Civil Court denied defendant's application, and the matter proceeded to a nonjury trial.

Plaintiff's president testified that defendant had failed to pay the balances due under the initial agreement and the "Change of Work Order," totaling, in all, $6,555. He further testified that, pursuant to the April 2009 agreement, defendant was required to supply the granite which plaintiff had agreed to install, but defendant had failed to do so. Defendant's husband testified that plaintiff did not complete all the work as agreed, since the granite had not been installed. Following the trial, the Civil Court awarded plaintiff judgment in the principal sum of $5,000, the monetary jurisdictional limit of the Small Claims Part (CCA 1801).

Upon a review of the record, we find that substantial justice was not done between the parties according to the rules and principles of substantive law (CCA 1804, 1807; Ross v Friedman, 269 AD2d 125, 126 [2000]). While the testimony adduced at trial established that plaintiff had completed the work to be performed pursuant to the "Change of Work Order," plaintiff conceded that it had not installed the granite pursuant to the April 2009 agreement. [*2]While full performance of this agreement may have been prevented by defendant, plaintiff could recover, as its damages, only the difference between the contract price and the amount which it would have cost plaintiff to install the granite (see 36 NY Jur 2d, Damages § 35). The evidence presented by plaintiff did not properly establish its damages with respect to the April 2009 agreement. Consequently, the judgment is modified by reducing the amount awarded to plaintiff to the principal sum of $3,255, the amount due under the "Change of Work Order."

We note that, assuming that the arbitration clause in the April 2009 agreement was valid (cf. General Business Law § 399-c), defendant waived any right she had to arbitration, since she waited an unreasonable period without asserting the right to arbitrate (see Byrnes v Castaldi, 72 AD3d 718 [2010]).

Weston, J.P., Rios and Solomon, JJ., concur.
Decision Date: October 05, 2012