Austin v Afzal

[*1] Austin v Afzal 2009 NY Slip Op 51309(U) [24 Misc 3d 128(A)] Decided on June 29, 2009 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Heitler, JJ
570493/08.

Frantz Austin, Plaintiff-Appellant, against

against

Mohammad Afzal, Defendant-Respondent.

Plaintiff appeals from a judgment of the Civil Court of the City of New York, Bronx County (Nelida Malave-Gonzalez, J.), entered on or about March 11, 2008, after a nonjury trial, in favor of defendant dismissing the complaint.

Per Curiam.

Judgment (Nelida Malave-Gonzalez, J.), entered on or about March 11, 2008, affirmed, without costs.

We find no basis in the record to impose liability upon defendant for breach of contract, where the evidence shows that defendant substantially performed the home improvement contract (see Tascone Slate Roofs v Quadrozzi, 184 AD2d 633 [1992]) and that he was prevented from completing the contract by plaintiff's improper termination. Plaintiff failed to demonstrate that the amount paid to defendant as a down payment exceeded the reasonable value of the labor, services and materials provided by defendant. To the extent that plaintiff alleged that he incurred cost of completion damages, his wrongful termination of the contract prevents him from recovering such damages. In any event, plaintiff failed to prove the amount of any such damages allegedly sustained (see Felix Constr. Corp. v Oakridge Land & Prop. Corp., 106 AD2d 488 [1984], lv denied 66 NY2d 606 [1985]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: June 29, 2009