Klein v LBK Constr.

[*1] Klein v LBK Constr. 2007 NY Slip Op 50678(U) [15 Misc 3d 132(A)] Decided on March 28, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 28, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : McCABE, J.P., TANENBAUM and LIPPMAN, JJ
2006-698 N C.

Richard Klein, Appellant,

against

LBK Construction, Respondent.

Appeal on the ground of inadequacy from a judgment of the District Court of Nassau County, Third District (Anna R. Anzalone, J.), entered November 28, 2005. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,750.

Judgment affirmed without costs.

In this small claims action seeking the recovery of $5,000, plaintiff asserted that defendant performed defective work in installing a driveway and walkway. Plaintiff appeals from a judgment in his favor in the principal sum of $1,750 upon the ground that said amount was inadequate. It is undisputed that following completion of defendant's work, plaintiff paid defendant the full amount due (indicated by plaintiff to be $8,500 and by defendant to be $8,300) under the contract.

In our view, substantial justice was done between the parties according to the rules and principles of substantive law (see UDCA 1807). The correct measure of damages in construction cases such as this one 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" (Brushton-Moira Cent. School Dist. v Thomas Assocs., 91 NY2d 256, 261-262 [1998]; see also Bellizzi v Huntley Estates, Inc., 3 NY2d 112, 115-116 [1957] [involving a defectively constructed driveway]). The Court of Appeals has further observed, "The difference in value' rule in defective performance of construction contracts seems to be applied only when it would be unfair to apply the general rule" (Bellizzi, 3 NY2d at 115), i.e., the cost to repair the defects. In the case at bar, there was uncontradicted evidence that the defects in the driveway could be [*2]corrected and, therefore, the appropriate measure of damages was the cost to repair (Bellizzi, 3 NY2d at 116).

UDCA 1804 provides that "two itemized estimates for services or repairs, are admissible in evidence and are prima facie evidence of the reasonable value and necessity of such services and repairs." While the two estimates proferred by plaintiff were "itemized" (UDCA 1804), they were scarcely specific on placing a value on each of the repairs. Defendant's vice-president, although an officer of an interested party, was also an expert. In addition to stating that the entire asphalt area did not have to be redone, he claimed that he could make all necessary repairs for $800 or $900.

It is clear that the trial court chose not to credit plaintiff's claim that he should recover more than $1,750 in damages, and the evidence does not require a finding that said sum was inadequate. The deference accorded to a trial court's credibility determinations applies with even greater force to judgments rendered in the Small Claims Part of the court given the limited standard of review (see UDCA 1807; Williams v Roper, 269 AD2d 125 [2000]). Under the circumstances, we do not disturb the determination of the trier of fact that plaintiff was entitled to $1,750 in damages.
McCabe, J.P., Tanenbaum and Lippman, JJ., concur.
Decision Date: March 28, 2007