Springer v AEP Eng'g, P.C.

[*1] Springer v AEP Eng'g, P.C. 2007 NY Slip Op 52226(U) [17 Misc 3d 134(A)] Decided on October 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2006-1381 K C.

Victor Springer d/b/a River Bay Woodwork, Respondent,

against

AEP Engineering, P.C. and Easa Moulana, a/k/a Essa Moulana, Appellants.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Debra Silber, J.), entered on March 31, 2004. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $9,000 as against both defendants.

Judgment affirmed without costs.

In this action for breach of contract, the parties entered into a handwritten agreement in accordance with which plaintiff was to be paid a total of $10,000, over a time period set forth in the agreement, for "work performed, carpentry, tiling b/r, paint, floors, (rough to finish) and miscellaneous work to the completion of this project,"
i.e., a construction job site located at 167 Court Street in Brooklyn, New York, and referred to elsewhere in the agreement. Only $1,000 was paid, and the parties disputed whether the terms "work performed" and "to the completion" referred to work already done, for which the agreement represented a discharge amount (see 22 NY Jur 2d, Contracts § 69), plaintiff's contention, or referred to a "punch list," for which specifics were never provided, but which plaintiff allegedly failed to complete, as defendants contended.

The court below properly determined, in light of its examination of the contract, as well as the circumstances surrounding its execution and the relationship of the parties, that the term "work performed . . . to the completion of this project" referred to work performed in the past, for which plaintiff had not yet been compensated (see W.W.W. Assocs. v Giacontieri, 77 NY2d 157, 162 [1992]; Geothermal Energy Corp. v Caithness Corp., 34 AD3d 420, 423-424 [2006]). Moreover, we find that there was a sufficient basis in the record to establish the individual [*2]defendant's liability. Since it was undisputed that only $1,000 of the $10,000 contract amount had been paid, an award in favor of plaintiff in the principal sum of $9,000 was warranted.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: October 22, 2007