Plaintiff filed a small claims case seeking to recover $5,000 – the amount she incurred to hire a second contractor to finish the construction of her basement after the defendant failed to complete the job.
The contract with the defendant was for a total of $23,000, and the plaintiff had already paid $20,000 of that amount. And, according to the plaintiff, only 60% of the work had been completed when the defendant left, prompting her to hire another contractor for $7,000 to finish the job. The defendant, however, claimed that he had completed 98% of the work.
After a nonjury trial, the Mount Vernon City Court determined that only 60% of the work had been completed, and awarded plaintiff $2,000, which was 40% of the $5,000 she sought.
On appeal, the Appellate Term, Second Department, agreed with the plaintiff, that the City Court had miscalculated the amount of damages – with the proper measure being the difference between the contract price and the cost of completing the work left undone.
Since the contract price was $23,000, and plaintiff had paid the defendant $20,000, and that the cost of completing the work with another contractor was $7,000, the AT2 concluded that substantial justice would be rendered by increasing the plaintiff’s award to $4000, making her total out-of-pocket expenditures equal to the amount she was required to pay under the contract with the defendant.
Accordingly, the appellate court modified the judgment and increased the award to $4,000.
Would you call that constructive?
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DECISION