Lukoff v. Sussex Downs, Inc.

In an action to recover damages for the negligent performance of a construction contract, the defendant appeals from a judgment of the Supreme Court, Nassau County (Ryan, J.), entered July 8, 1985, which, upon remittitur from this court limited to a new trial on damages (Luckoff v Sussex Downs, 104 AD2d 636), and after a nonjury trial, awarded the plaintiffs the principal sum of $23,000. Ordered, that the judgment is modified, on the facts, by reducing the award to the plaintiffs to the principal sum of $20,200; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme 443 Court, Nassau County, for entry of an appropriate amended judgment. The trial court properly considered the amount actually paid by the plaintiffs to replace the negligently installed cedar siding in ascertaining the amount recoverable, i.e., the fair and reasonable market price for correcting the defective installation (see, Bellizzi v Huntley Estates, 3 NY2d 112; City School Dist. v McLane Constr. Co., 85 AD2d 749, lv denied 56 NY2d 504; Ciminelli v Umland Bros., 236 App Div 154). The record, however, reveals that the sum of $20,200 represents the actual costs of the repairs since the contract between the plaintiff and the contractor who performed the repairs expressly excluded "stone work”, for which the plaintiffs paid $3,000 and for which the defendant was not liable. The amount of the award is accordingly modified to the extent indicated. Niehoff, J. P., Rubin, Eiber and Kunzeman, JJ., concur.