A. Palmieri Landscaping v Canoni
Annotate this CaseDecided on April 27, 2006
City Court of Mount Vernon
A. Palmieri Landscaping, Plaintiff,
against
Melissa Canoni, Defendant.
SC 4050-05
A. Palmieri Landscaping
Plaintiff
6 Penn Place
Pelham Manor, New York 10803
Melissa Canoni
Defendant
188 Bronxville Road
Bronxville, New York 10705
Adam Seiden, J.
A trial was held in this small claims action where the plaintiff seeks to recover damages in the amount of $1921.78 resulting from defendant's failure to pay for contracting services rendered. The defendant has counterclaimed for $5,000.00, arguing that plaintiff failed to complete the work at her home in accordance with applicable building codes, requiring her to have the work redone at additional cost.
The credible testimony at trial established that the parties entered into a contract on June 29, 2005 whereby plaintiff was to perform various contracting work at defendant's home, which included the preparation and installation of a cement block wall with stone veneer to the side property, approximately 16 ft. long. The contract specified that the wall was to be "2 ft high, 1 ½ ft. wide with proper footing and add 3 yards 3/4 bluestone." The City of Yonkers Department of Buildings subsequently issued a Building Permit for the work to be completed, which included the retaining walls. The permit specified: "footing and foundation inspection to be made [by building inspector] after the footing trenches are excavated and the necessary forms erected." The permit also specified that the architect of record, David Barbuti, was to certify all footings, foundations and soil conditions and submit to Dept. of Housing & Buildings before any work on the foundation, and that the architect was to certify all retaining walls upon completion. The plaintiff contractor seeks payment of the remaining balance of $1,900 that the defendants failed to pay on the contract.
Following the construction project's completion, the defendant was unable to obtain approval from the City of Yonkers for the work completed since the footings were not constructed in accordance with the Building Code. The defendant asserts that she was forced to hire another contractor to rip out the retaining wall and to reconstruct it properly, at an additional cost of $5,000. The defendant submitted a paid bill for reconstruction of the retaining wall, and canceled checks to substantiate her claim.
The Court finds that the plaintiff contractor was responsible for the failure to construct the retaining wall in accordance with the Building Code. Although the plaintiff argues that it was the defendant who was responsible for ascertaining the Building [*2]Code requirements, the contract language clearly specified that the plaintiff contractor was to construct a wall on the defendant's side property with proper footing. The footing was not properly constructed in accordance with the Building Code. Further, the Building Permit required that inspections of the footing be done after the footing trenches were excavated, i.e., before it was installed.
In any event, in every home improvement contract, the contractor has an implied duty to perform the contract in accordance with fire prevention and building code requirements. The consumer homeowner relies upon the building contractor's skill and expertise to perform the alterations and improvements (Reale v Linder, 135 Misc 2d 317 (Dist. Ct, Nassau Co. 1987) as modified 143 Misc 2d 496 (App. Term 2d Dept 1988). Therefore, the Court finds that since the plaintiff contractor did not complete the work as specified in the contract, it may not recover the remaining balance.
With respect to the defendant's counterclaim, the court finds that the defendant established her claim that she had to pay additional monies to have the retaining wall ripped out and reconstructed in order to meet the Building Code requirements. Damages are intended to return the parties to the point at which the breach arose and to place the nonbreaching party in as good a position as it would have been had the contract been performed (see, e.g., Goodstein Constr. Corp. v City of New York, 80 NY2d 366, 373 (1980)). The appropriate measure of damages is the cost to repair the defects or, if the defects are not remediable, the difference in value between a properly constructed structure and that which was in fact built (Bellizzi v Huntley Estates, 3 NY2d 112, 115-116; Roudis v Hubbard, 176 AD2d 388 (3d Dept 1991)). This rule is merely a recognition of the precept that damages are intended to place the injured party in the same position as if there had been no breach.
In this case, the defendant would have paid the plaintiff the remaining balance of the contract, $1,921.00, if the retaining wall had been properly constructed. Since the defendant submitted proof that the reconstruction of the retaining wall cost her $5,000, the Court awards damages to the defendant on her counterclaim in the amount of $3,169.00, representing the additional costs she incurred due to the plaintiff's breach of the contract.
Judgment for defendant in the amount of $3,169.00.
Dated:April 27, 2006
Mount Vernon, New York
__________________________________
HON. ADAM SEIDEN
Associate City Judge of Mount Vernon
To:
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