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Anthony L. Castiglia v. City of Lockport

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 11, 1981
85 A.D.2d 879 (N.Y. App. Div. 1981)

Opinion

December 11, 1981

Appeal from the Niagara Supreme Court, Wolf, J.

Present — Dillon, P.J., Hancock, Jr., Callahan, Doerr and Moule, JJ.


Judgment unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: The decision for plaintiff, in its action to recover payment for materials and services provided defendant in the construction of a municipal parking garage, is supported by sufficient proof in the record. Since defendant breached the contract when it unjustifiably prevented completion, plaintiff could recover in quantum meruit for work done ( Paterno Sons v Town of New Windsor, 43 A.D.2d 863). In calculating the damages, however, defendant should have been given credit for excavation payments already made, and should not have been required to pay overhead and profit on general payments retained by it under the contract, as the retainage already reflected such amounts. Therefore, judgment is modified to the sum of $283,608.51: (1) 3,600 cubic yards of garbage excavation at $1.01 per cubic yard, plus 5% overhead and 10% profit, for a total of $4,199.58; (2) 7,000 cubic yards of gravel fill, compaction and testing at $5.40 per cubic yard, plus 5% overhead and 10% profit, for a total of $43,659; (3) 883 cubic yards of rock excavation at $62.48 per yard, less credit for $4,710 already paid, for a total of $50,459.84; (4) interest on the total of the preceding three figures from December 25, 1975 in the amount of $28,492.65; (5) expenses incurred after December 25, 1975 as calculated by the court, less retainage, plus 5% overhead and 10% profit for a total of $86,147.68; (6) retainage in the amount of $36,850, and (7) interest on the total of the preceding three sums from April 1, 1976 in the amount of $33,799.76.


Summaries of

Anthony L. Castiglia v. City of Lockport

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 11, 1981
85 A.D.2d 879 (N.Y. App. Div. 1981)
Case details for

Anthony L. Castiglia v. City of Lockport

Case Details

Full title:ANTHONY L. CASTIGLIA, INC., Respondent, v. CITY OF LOCKPORT, Appellant…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 11, 1981

Citations

85 A.D.2d 879 (N.Y. App. Div. 1981)

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