Appellate Term of the Supreme Court of New York, Second DepartmentJul 10, 2008
2007-1530 Q C (N.Y. Misc. 2008)
2007-1530 Q C2008 N.Y. Slip Op. 51570

2007-1530 Q C.

Decided July 10, 2008.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered July 13, 2007. The judgment, after a nonjury trial, awarded plaintiff $6,600 plus interest and costs and dismissed defendant's counterclaim.

Judgment reversed without costs, counterclaim reinstated and a new trial ordered consistent with the decision herein.


Plaintiff commenced this action seeking the sum of $6,600 for work done on defendant's home. Defendant interposed a counterclaim seeking damages in the sum of $8,500 resulting from plaintiff's allegedly faulty work. After a bench trial, the lower court awarded plaintiff $6,000 and dismissed defendant's counterclaim. Judgment was entered for the principal amount demanded in the complaint, rather than the amount awarded by the court. Defendant appeals from the judgment.

Both parties testified at trial that they entered into an oral agreement whereby plaintiff would do a series of home improvement projects for defendant for a total cost of $29,500. It is undisputed that defendant completed four of the five jobs and that defendant made four payments to plaintiff totaling $20,000. Defendant maintains that he paid plaintiff for all of the work that was completed, while plaintiff claims that there is a balance due on the finished jobs.

The trial court found as fact that the cost of the fifth job would have been $4,000. Because that job was not completed, the court reasoned that the contract price was reduced by $4,000 and plaintiff was entitled to the total sum of $25,500 on the contract. The court found that defendant had paid $19,500 and that defendant owed plaintiff the sum of $6,000. None of these findings are supported by the testimony adduced at trial. Accordingly, a new trial is required with respect to plaintiff's cause of action.

In support of his counterclaim, defendant and his contractor both testified that plaintiff failed to flash the chimney he installed and that, as a result, water leaked into defendant's house, causing at least $2,700 worth of damage. Plaintiff testified that the roof was not completed when he finished the chimney and that he was not responsible for the flashing. We find that the court erred in failing to consider photographs proffered by defendant which he claimed would support his testimony that the roof was completed before the chimney.

In view of the foregoing, the judgment is reversed, defendant's counterclaim is reinstated and the matter is remanded to the court below for a new trial on plaintiff's cause of action and defendant's counterclaim.

Pesce, P.J., Rios and Steinhardt, JJ., concur.