Opinion
December 30, 1970
In an action to recover damages for breach of contract, plaintiff (1) appeals, on the ground of inadequacy, from so much of a judgment of the Supreme Court, Kings County, entered July 27, 1967, as is in plaintiff's favor after a nonjury trial, and (2) also appeals from an order of the same court, dated June 20, 1967, which denied plaintiff's motion to amend the trial court's decision so as to increase the amount of the damages awarded. Appeal from order dismissed as academic, in view of the determination herein on the appeal from the judgment; and judgment reversed insofar as appealed from, on the law and the facts, and severance of action granted as to plaintiff's complaint, with costs to abide the event of the new trial. Plaintiff was the proprietor of a pastry shop in a building owned by defendant. Above the shop were located a number of apartments which defendant was remodeling. To complete that work it was necessary to install pipes in plaintiff's place of business. Since such operation would completely interfere with plaintiff's business, the parties, in consideration for allowing defendant to enter the pastry shop, agreed on March 12, 1962, to basically the following: (1) defendant would pay plaintiff $2,000, with the proviso however that, if the work were completed in less than 12 working days, the price of $2,000 would be reduced by $50 for each working day less than 12 days; (2) defendant guaranteed that all the work performed would be done in a clean and workmanlike manner and that he would restore the store premises, upon completion of all necessary work, to the original condition; and (3) defendant agreed to pay plaintiff $75 a day (liquidated damages) for each day over the time limit of the 12 working days provided for the completion of the work. On March 26, 1962, defendant completed the necessary piping work. Plaintiff claims that defendant left his store in a "mess" and asked defendant at such time to restore the leased premises to their original condition. Defendant, however, refused. Plaintiff brought this action for $500, which represented the unpaid balance of the $2,000 provided for in the agreement, and, in addition, for liquidated damages of $75 per day, claiming that defendant breached the March 12 agreement by failing to make the required restoration. Trial Term awarded plaintiff the unpaid $500, but did not allow plaintiff any damages for the alleged breach. It found that there was no specific proof tendered as to either the amount of plaintiff's damages or the period covered by the breach. In our opinion, Trial Term should have considered plaintiff's claim for liquidated damages of $75 per day from March 28, 1962 (the day after the 12-working-day deadline provided in the March 12 agreement) until January 23, 1963, during which period plaintiff claimed he was unable to resume his business operation because of the failure of defendant to make the required restoration. With respect to Trial Term's finding that there was "no specific proof" as to the amount of plaintiff's damages, we note that it is well-settled law that where, as in the instant case, parties have included in their agreement a liquidated damage clause, there is no necessity for the plaintiff to show affirmatively that he has sustained actual damages in any specific amount — there being no question raised here that the per diem amount provided for in the agreement was unreasonable or in the nature of a penalty ( Little v. Banks, 85 N.Y. 258; Norris v. McMechen, 135 Misc. 361; see, also, 14 N Y Jur. [rev.], Damages, § 155). Despite plaintiff's evidence as to the duration of the breach, however, this court is of the further opinion that the doctrine of mitigation of damages has application. Indeed it would appear that plaintiff was obligated to minimize his damages after defendant clearly manifested to him his unwillingness to restore the leased premises to their original condition (see 13 N.Y. Jur., Damages, § 27). Accordingly, if upon the new trial it is concluded that there was indeed a breach as alleged, then plaintiff would be entitled to recover liquidated damages for that period of time required to restore the leased premises to their original condition, if plaintiff had proceeded with due diligence to make the necessary restoration after defendant had refused. Christ, P.J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.