Rosenbaum v Atlas & Design Contrs., Inc.

Rosenbaum v Atlas & Design Contrs., Inc. 2009 NY Slip Op 07516 [66 AD3d 576] October 22, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 9, 2009

Richard Rosenbaum, Respondent-Appellant,
v
Atlas & Design Contractors, Inc., Appellant-Respondent.

—[*1] Raymond E. Kerno, Mineola, for appellant-respondent.

Stroock & Stroock & Lavan LLP, New York (Kevin L. Smith of counsel), for respondent-appellant.

Judgment, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered July 17, 2008, after a nonjury trial, awarding plaintiff the principal sum of $46,467.75 for wilful exaggeration of a lien and dismissing defendant's counterclaims, unanimously affirmed, without costs.

The credibility-based determination that defendant had wilfully exaggerated the value of its services, rather than merely made an honest mistake (see Goodman v Del-Sa-Co Foods, 15 NY2d 191, 194-195 [1965]), was based on a fair interpretation of the evidence (see Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]). Contrary to defendant's contention, denial of its counterclaim for breach of contract was not based on improper linkage with the determination that the lien was forfeited; rather, the ruling was premised on the credibility-based rejection of defendant's argument that its fees were largely for design services and the recognition that when its contract was terminated it had not yet commenced any of the physical construction it had undertaken. Having terminated the construction contract pursuant to its at-will termination provision, plaintiff was not entitled to damages for breach; in any event, the "proposed" time frame set forth was precatory and thus did not give rise to termination for cause or support an action for breach. [*2]

We have considered the parties' other contentions for affirmative relief and find them unavailing. Concur—Friedman, J.P., McGuire, Moskowitz, Acosta and DeGrasse, JJ.