Opinion
October 19, 1992
Appeal from the Supreme Court, Suffolk County (Namm, J.).
Ordered that the judgment is affirmed, with costs.
In May 1983 the plaintiff, Alan Brenner, purchased a vacant parcel of land in Cold Spring Harbor, New York. Shortly after purchasing the property, the plaintiff hired the defendant G. David De Bruin, a licensed professional engineer, to prepare building plans for the construction of a single family residence on the site. The plaintiff advised the defendant that he had a budget of $100,000 for construction, and the parties subsequently entered into a written agreement which provided that "[a]ll work is predicated upon [the plaintiff's] intention to maintain a budget for the cost of construction on the area of $100,000".
After preliminary plans for the residence had been completed, the parties met to discuss specific details for the design of the house, and at this time the plaintiff allegedly requested several modifications to the defendant's plans, including the installation of a bay window in the kitchen, pillars and columns for a colonial appearance, a skylight, and a sliding door for the deck. Although the plaintiff approved the plans as modified, the defendant maintains that the parties never discussed the increased costs of construction which would be caused by the modifications. After receiving the final plans from the defendant in early October 1983 the plaintiff solicited construction bids, but could not find a contractor willing to build the residence in accordance with the plans for less than $160,000. He subsequently instituted this action against the defendant, seeking damages for fraud, negligence, and breach of contract.
Upon the conclusion of a nonjury trial, the Supreme Court granted judgment in favor of the defendant and dismissed the complaint. Following remittitur of the matter, the trial court filed findings of fact which resolved credibility issues presented by the conflicting evidence adduced at trial primarily in favor of the defendant, concluding, inter alia, that the defendant had never represented that he was an expert with respect to construction costs, or that the cost of constructing the residence as proposed and approved by the plaintiff would not exceed $100,000.
Contrary to the plaintiff's contention, we conclude that the court properly entered judgment in favor of the defendant and dismissed the complaint. With respect to the plaintiff's cause of action to recover damages for breach of contract, the court resolved key questions of fact, including those of credibility, in favor of the defendant. Significantly, the court found that several changes had been made to the design of the residence subsequent to the parties' agreement, that the plaintiff had approved these changes, and that the parties never discussed the potential costs of these changes. Accordingly, the court concluded that the defendant did not breach the agreement since he never represented that the cost of constructing the residence, as ultimately proposed and approved by the plaintiff, would not exceed $100,000 (see, American Union Transp. v McMullen Assocs., 52 A.D.2d 827). "[T]aking into account * * * `the fact that the trial judge had the advantage of seeing the witnesses'" (Northern Westchester Professional Park Assocs. v Town of Bedford, 60 N.Y.2d 492, 499, quoting from York Mtge. Corp. v Clotar Constr. Corp., 254 N.Y. 128, 133-134), we do not find this conclusion unwarranted by the the evidence (see, Mirasola v Gilman, 163 A.D.2d 371; Richman v Federated Adj. Co., 134 A.D.2d 582; Matter of Fasano v State of New York, 113 A.D.2d 885).
The trial court similarly resolved questions of credibility with respect to the plaintiff's fraud cause of action in favor of the defendant, and its dismissal of this cause of action is supported by its finding that the defendant never represented that he was an expert with respect to construction costs (see, Brown v Lockwood, 76 A.D.2d 721). In any event, it is settled law that a cause of action sounding in fraud does not lie where, as here, the claim is based upon the same allegations as give rise to a breach of contract cause of action (see, McKernin v Fanny Farmer Candy Shops, 176 A.D.2d 233; Scheinberg v Samuels, 171 A.D.2d 857; Mastropieri v Solmar Constr. Co., 159 A.D.2d 698; Tuck Indus. v Reichhold Chems., 151 A.D.2d 565).
The court properly dismissed the plaintiff's cause of action to recover damages for negligence, since the plaintiff failed to introduce evidence to establish that the defendant's actions fell short of accepted standards of engineering or architectural practice (see, Grace Co. v State Univ. Constr. Fund, 64 N.Y.2d 709). Sullivan, J.P., Eiber, O'Brien and Ritter, JJ., concur.