Liddell v Ali

[*1] Liddell v Ali 2006 NY Slip Op 51182(U) [12 Misc 3d 133(A)] Decided on June 7, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 7, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2005-1070 K C.

Arthur Liddell, d/b/a Lynear Enterprises, Appellant,

against

Chaundhry Ali and Shawn Construction Inc., Respondents.

Appeal from a judgment of the Civil Court of the City of New York, Kings

County (Sarah L. Krauss, J.), entered April 11, 2005. The judgment, after a nonjury trial, dismissed plaintiff's action and awarded defendants the principal sum of $22,600 on their counterclaim.

Judgment affirmed without costs.

In this action by a subcontractor against a general contractor and its principal seeking damages for breach of a construction contract, defendants counterclaimed, alleging that plaintiff breached the contract by failing to complete the work. Upon a review of the record, we find that the court below properly determined that plaintiff failed to prove that defendants owed him any sums due under their contract and, with respect to the counterclaim, that plaintiff was liable for the uncompleted work. Since, on a cause of action seeking damages for breach of a construction contract, the proper measure of damages is the fair and reasonable market price for correcting the defective work or completing the construction, whichever is appropriate (see Thompson v McCarthy, 289 AD2d 663 [2001]; Halsey v Connor, 287 AD2d 597 [2001]; Ferreira v Saccento, 286 AD2d 366 [2001]; Lyon v Belosky Constr., 247 AD2d 730 [1998]; Sherman v Hanu, 195 AD2d 810 [1993]), the court properly awarded defendants $22,600 on their counterclaim, representing the cost of completing the construction.

We note that the findings of fact and conclusions of law of the court below were reached upon a fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). Furthermore, with regard to issues of credibility, "a trial court's resolution of questions of credibility is particularly within its domain and should not be disturbed on appeal if supported by the record" (Vizzari v State of New York, 184 AD2d 564, 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). "This is especially true when findings of fact rest in large measure [*2]on considerations relating to credibility of witnesses" (Richard's Home Ctr. & Lbr. v Kraft, 199 AD2d 254, 254 [1993]; see McGuirk v Mugs Pub, 250 AD2d 824 [1998]).

As no issue is raised with regard thereto, we do not pass on the propriety of the court's awarding judgment to both the individual and corporate defendants.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: June 7, 2006