vacating award of compound interest in contract case and stating that "under the circumstances of this case, an award of compound interest would be inappropriate"Summary of this case from Marfia v. T.C. Ziraat Bankasi, New York Branch
August 16, 1993
Appeal from the Supreme Court, Suffolk County (Jones, J.).
Ordered that the judgment is modified, on the law and the facts, by (1) increasing the award of damages from $13,158.70 to $17,395.65, and (2) deleting the award of compound interest, and substituting therefor a provision awarding simple interest at the statutory rate of 9%; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for entry of an appropriate amended judgment in accordance herewith.
In this case involving, inter alia, claims for damages for breach of a contract to construct a house, the court, after a nonjury trial, found the defendants liable for breaching the contract and failing to complete construction of the house.
Although the court adopted in large part the figures estimated by one of the plaintiff's experts to be the costs for the completion of various work on the house and correction of the defendants' construction defects, the plaintiff finds the award of damages to be inadequate and seeks an increase in the award. The plaintiff homeowner seeks, among other things, to have this Court adopt her figure of $106,440.49 as a partial measure of her actual expenses for the proper completion of her home (to which figure the plaintiff seeks to add other damages, for a total recovery of $166,492.11). We reject her contention that the trial court erred in rejecting her claimed "actual costs" as the measure of damages. While the plaintiff is entitled to be compensated for the cost of completion of the construction work and the correction of defects in the defendants' work (see, Kaiser v Fishman, 138 A.D.2d 456, 458-459; Sarnelli v Curzio, 104 A.D.2d 552, 553), the proper measure of damages is the "fair and reasonable market price for correcting the defective installation [or completing the construction]" (Lukoff v Sussex Downs, 131 A.D.2d 442, 443; see also, Bellizzi v Huntley Estates, 3 N.Y.2d 112, 114-116; City School Dist. v McLane Constr. Co., 85 A.D.2d 749, 750; American Std. v Schectman, 80 A.D.2d 318, 321, 324).
Upon our review of the trial exhibits and the other evidence adduced at trial, we find that $106,440.49 does not constitute the reasonable cost for the completion and correction of the work and the trial court's rejection of that figure was for the most part reasonable (see, Matter of Fasano v State of New York, 113 A.D.2d 885, 887-888; see also, Northern Westchester Professional Park Assocs. v Town of Bedford, 60 N.Y.2d 492, 499; cf., Mayor of City of N.Y. v Second Ave. R.R. Co., 102 N.Y. 572, 576-577). This is not to say, however, that each individual component of the trial court's award was correct. On the contrary, we find that the trial court erred in awarding the plaintiff only $850 for repairing cracks in the concrete apron and foundation. We increase this amount to $1,400, to reflect the full amount of the estimated cost of making this repair as attested to by one of the experts. We further determine that the plaintiff was entitled to an award of $200 to reflect the cost of a second basement door included under the contract but which the defendants never supplied.
Addressing the plaintiff's claims for damages with respect to certain "extras", that is, items not covered by the contract but requested by the plaintiff, we agree that it was error for the trial court to fail to award the plaintiff damages for the defendants' failure to "finish" (sand, stain, and seal) the interior doors, and we also find that the contractor improperly charged the plaintiff a roofing supplement when the trial evidence did not demonstrate that the shingles received by the plaintiff were different than those to be provided under the contract. The damages recoverable for these two items are $1,486.95 and $2,000 respectively.
As for the remainder of the plaintiff's damage claims, with the exception of the two items enumerated above, we find that the plaintiff has failed to adequately demonstrate that the trial court's rejection of these damage claims was against the weight of the credible evidence, or was otherwise unreasonable; nor do we find this determination to be incorrect as a matter of law. Hence, we decline to further modify the court's award of damages.
Finally, we agree with the defendants' contention that the court erred in awarding the plaintiff compound interest upon the damage award. The trial court's decision did not expressly award compound interest, and we further find that, under the circumstances of this case, an award of compound interest would be inappropriate (cf., Long Playing Sessions v Deluxe Labs., 129 A.D.2d 539). Eiber, J.P., O'Brien, Ritter and Copertino, JJ., concur.