Opinion
May 18, 1971
Appeal from a judgment of the Supreme Court, entered in Rensselaer County upon an amended decision, and from an order of the same court granting respondent's motion to vacate and amend a previous decision. Appellant, successful bidder to construct a dam for the State, entered into negotiations with respondent concerning the subcontracting of certain concrete work required by the general contract. Respondent allegedly completed the work specified and on January 31, 1968 filed a notice of lien on the moneys due appellant on the general contract. In the proceedings to foreclose the lien, while the parties agreed that respondent was to be compensated on the basis of a per hour labor cost, plus the cost of materials, rather than on a lump sum basis, the issue of the exact amount of compensation which was due to the respondent was disputed. The trial court resolved this dispute by holding that respondent was entitled to the "reasonable value of the labor and material provided" by it, which the trial court found to be the total amount of three invoices which respondent submitted to appellant ($7,726.59), reduced by the amounts previously paid ($5,355.83) resulting in a judgment in the sum of $2,370.76. The court rejected respondent's claim that the terms of the contract were "cost plus". Thereafter on respondent's motion the court amended its decision to indicate that the correct total amount due according to the three invoices was $11,293.83. Judgment was accordingly entered directing that respondent recover $5,438 ($11,293.83 less the $5,355.83 paid and less $500 allowed the appellant as an additional credit to settle the matter) plus costs and disbursements. On this appeal appellant urges that the trial court's modification of its decision was improper in view of CPLR 4405 and that its determination of the reasonable value of respondent's services was erroneous. We find nothing improper in the trial court's modification of its decision since judgment based on the original decision had not been entered and therefore the action had not been terminated (CPLR 2001; 2A Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 2001.03), albeit that it did so some 4 1/2 months after its original decision. CPLR 4405 applies specifically only to motions under article 44 of the CPLR, and the motion here involved, being a motion to amend a decision rather than a motion to set aside a judgment under CPLR 4404 (subd. [b]), was not a motion within article 44. Similarly appellant's argument that the value of respondent's services should be determined by averaging bids on the work involved is absolutely without merit, especially since appellant's president testified at the trial that respondent was to work on a time and materials arrangement. Nor do we find any error in the trial court's utilization of respondent's invoices as the basis for determining the value of the services rendered except that since the dump truck was used for the transportation of respondent's equipment and since appellant provided security for the equipment, the total amount claimed for trucking is not chargeable to the appellant. In addition the attorneys for both parties stipulated that in order to take into account the employer's expenses for payroll taxes, disability insurance, unemployment insurance, compensation, and social security, labor expenses should be increased by 10%. On the other hand, the invoices upon which the court below based the determination of the amount due indicate that wages paid were increased by 18% for "Comp. Ins., etc." in computing labor expenses. Therefore, the total amount for labor expenses was improperly computed and the judgment should be appropriately adjusted to reflect this overcharge. Accordingly, the recovery must be reduced by $890.94 for improperly included trucking expenses ($993.24 less one round trip of 300 miles at $.31 per mile, plus 10% overhead), by $416.67 for improperly computed labor expenses (8% of $5,208.34) and by $130.76 for improperly included overhead attributable to the above reductions (10% of $890.94 and $416.67) to an amount of $3,999.63. Judgment and order modified, on the law and the facts, to reduce the recovery to $3,999.63 and, as so modified, affirmed, without costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.