Opinion
No. 022338/09KI.
2013-05-15
Joanne CABRERA, Plaintiff, v. GREEN COMPLEX, INC., Defendant.
David Gordon, Esq., Gordon & Haffner, LLP, Harrison, for Defendants. Gilbert A. Whyte, Esq, Law Office of Gilbert Whyte, Esq, Brooklyn, for Plaintiff.
David Gordon, Esq., Gordon & Haffner, LLP, Harrison, for Defendants. Gilbert A. Whyte, Esq, Law Office of Gilbert Whyte, Esq, Brooklyn, for Plaintiff.
KATHERINE A. LEVINE, J.
After trial, defendant Green Complex Inc. (“Green Complex” or “defendant”) moved to dismiss the case on the ground that it was not liable for any damage to plaintiff's property since all the excavation and construction work on the adjacent property it owned was performed by an independent contractor—Ecuador Construction Inc. (“Ecuador”). Defendant also contended that the case should be dismissed because plaintiff failed to present an expert to prove causation or the cost of the property damage, and that the paper estimates she presented were hearsay. Finally, defendant urged the court not to admit into evidence a document signed by defendant's president Charles Malul (“Malul”) agreeing to repair some of the damages to the property because said paper constituted a settlement.
Plaintiff Joanne Cabrera (“plaintiff” or “Cabrera”) sued defendant for property damage in the amount of $15,300; loss of personal property in the amount of $7,500; and failure to pay for services rendered in the amount of $1380.00. She testified that Green Complex tore down a church and started to build on a lot adjacent to her lot in September 2008. This vacant property ran approximately 20 feet from her driveway. She knew that Green Complex was doing the construction because they had “little licensed papers that they put up once they start construction.” which stated “Green Inc.” (Tr. 7). The signs were the size of a notebook page—they had six or seven of them joined together with the permit stating construction would begin.
At the commencement of construction sometime in December 2008, one Mario, who never appeared in court, came over to her house and introduced himself as the one who would be doing construction as the foreman. Plaintiff indicated that Mario was the person in charge; there were 11–12 workers on any given day. On the first day he stated that he needed a supply of water to mix cement and requested that she supply him with water and that at the end of each month he would pay the water bill and compensate her. She said “no problem.” She also supplied him with electricity and allowed him to run the electrical cord to her house. She allowed Mario to use her water and electricity because she wanted to create good will so that he would modernize her home after the job was done. Mario gave her a one time payment in cash of $375—in around February 2009. Water bills come every three months.
Defendant's witness Malul is in the business of developing and selling real estate and is the president and only member of Green Complex. The corporation acquires houses and land and hires people, architects-contractors to fix homes or build them. He has been in the real estate development business for 11 years. Green Complex does not employ any others personnel except a secretary. He purchased the property at 443 Marrion Street in 2007—it was a double lot which consisted of building that had been used as a church and a vacant adjacent lot. He purchased the property from a small bank; the previous owner of the property had defaulted on the mortgage so the bank took it over. The bank did not have experience in developing or building on properties so they asked him to purchase the property (Tr. 39). Malul purchased the property with already approved plans by the Department of Buildings (“DOB”). “That way, I can hire some people and ... build houses and sell them” (Tr. 16). Malul was personally involved in taking steps to build the homes (Tr.19). After the closing he met with an architect who explained to him how to get the permits and start the work (Tr. 20).
Malul looked for a contractor to complete the demolition and excavation work—30% of the church had already been demolished by the time he bought the property. He first re retained the original company that had started the demolition—they took his money, did nothing and disappeared. He then hired another company to complete the demolition work of the church. Defendant used “heavy duty” machinery and brought in a tractor which dug down against her building. Finally, Malul hired Ecuador Construction to build the properties—he had worked with them before and found they to be “good” (Tr. 29).
Malul entered into an agreement with Ecuador (Def.“B”) dated January 3, 2008;
Mario Zingry signed on behalf of Ecuador. Under the agreement, Ecuador was responsible for the installation and maintenance of the fence around the entire property; the completion of the “shoring and underpinning” in accordance with the Department of Building codes; the completion of all brick/block for the front and side of the houses; the completion of the framing of the houses; and the installation of all exterior doors and windows. Ecuador also had to keep the job site clean and free of debris. Ecuador was to take care of any violations received at the property while it was working at the site. Finally, Ecuador was to provide all materials but defendant, as the home owner, was to provide the wood frame, doors and windows. Ecuador never showed him a construction or business license. Malul claims that his name was not listed as the contractor on the permits but he does not know whose name was on it. Defendant failed to produce copies of the permits at trial.
The date that Mario commenced working at the site is one of the many inconsistencies presented by the divergent testimony of plaintiff and defendant. While the agreement indicates January 3m 2008 as the starting date, plaintiff testified Mario started in December 2008.
Malul indicated that he paid Ecuador pursuant to a progress schedule. Malul visited the site at least 17 times. The bank loaned Malul the money to then pay Ecuador. Ecuador first had to dig a foundation for which they obtained a lump sum. After they finished digging, they poured a foundation for five houses and they got another lump sum etc. However, there was a verbal understanding that Malul would not pay Mario unless the work was to his satisfaction because payment was also contingent upon the bank's liking it. Malul visited the site with engineers from the bank as it was standard for the engineers to come and view “major construction” (Tr. 52). Ecuador used “various heavy duty machine to dig and pour concrete Malul did not own the equipment Ecuador Construction owns all the equipment.”.
Plaintiff allowed defendant access to her property until March 2009, when Mario cut down her tree. Plaintiff explained that Mario removed a fence over her objection and told her parts of her tree were hanging over his side so he cut down the whole tree. At that point Mario crossed her boundaries and she no longer allowed him on her property. She told Mario he could no longer use the water on her property. While plaintiff alleges he continued to use the water, she never actually saw Mario take the water after the tree was cut down.
Her house sustained the following damage—all the sidings were damaged—there were holes in the siding and water started coming into her basement. Even though defendant replaced the siding the hole is still there. Plaintiff bought her house in 1993 and never experienced any flooding before the current construction. Before work was done to the adjacent property, there was cement straight to the side of her house. After the excavation, defendant left a dirt strip of about two inches between the newly poured concrete sidewalk/driveway and the yellow wall of her building; this gap created water seepage into her basement (Pl. “2 C”). Furthermore, the concrete on the church's property was poured on a slant making it uneven (Pl.2 “D”) and causing water to seep down into her dirt and then into her basement. Defendant failed to build a run off for the water. On cross plaintiff specified that her property ends somewhere in the dirt strip about two inches from the wall of her house.
A picture taken in June 2009 (Pl. “2 J”) shows that defendant did fill the space between the concrete walkway and her house. However, plaintiff was not happy with the way the concrete was poured—in a slab rather than an “L” shape to permit drainage. The picture also showed holes or spaces between the new cement slab and the wall of her home. Plaintiff claims that the water still seeps into the basement. However, plaintiff brought no pictures or estimates as to the cost of repairs of the interior of her house due to the water seepage.
Defendant took down the fence which had divided her property from the empty lot and damaged the sidewalk by the fence, which defendant subsequently fixed. Defendant replaced her old fence, which she had previously filled with “plastic things” to create privacy, with a little chicken wire fence. Plaintiff no longer has privacy in her back yard due to defendant's replacement of her fence and its cutting down her tree. There used to be a fence to the front of her house but they never replaced that. Furthermore, there is a little piece of dirt by the front steps that defendant still did not pave. All the wood and construction material was placed in her back yard. A tractor sat partially on her property over night for at least six weeks and it caused damage to the outside wall of her home.
Plaintiff confronted Mario about the damages. He said he would speak to his boss and would compensate her for the damages. Mario called Mr. Malul several times in her presence and put her on the phone with Malul who he referred to as “his boss” (Tr. 94). Mario told her that he worked for Malul and fixed a lot of his buildings. (Tr. 94, 122). Plaintiff claims the damages were never repaired.
The Admissibility of Malul's Writing.
Plaintiff recognized Malul when he appeared at the first court appearance on April 28, 2009, since she had seen him several times at the work site speaking with Mario. Both plaintiff and Malul agree that April 28, 2009 was the first court date in this case, that it was adjourned, and that Malul did not appear with an attorney. Malul came over and introduced himself as “The “Boss' (Tr. 121). After court, Malul wanted to know what the law suit was about and asked Cabrera to explain why she was suing him. She explained that she had been nice to Zingry (Mario) and agreed to give him water and electricity in exchange for Mario's agreement to pay the water and electricity bills for her entire building and also fix her damaged back yard with broken down cement and lots of garbage for free (Tr. 60–62). Malul asked Cabrera why she was suing him rather than Mario and she replied that she had tried to call Mario about the damage but he refused to pick up the phone so she sued Green Complex. Malul then said he would call Mario to see what was going on. Malul told Mario to meet them at the house.
Malul had looked at plaintiff's property when he first bought the church and adjoining lot. Her house was right on the property line and the backyard was falling apart. After the court appearance, Malul came over to her house and she showed him all the property damage that she had incurred due to construction. He stated he was in the construction business and that “my guys” did something to your property, they made a “mistake” and “don't worry, we will take care of that.” (Tr. 20). Malul stated that he was not happy that Mario went to a neighbor and asked for water and “made problems.” He had no prior knowledge about this.
Plaintiff claims that Malul “volunteered” to write down all the repairs that he would take care of with his contractor (Tr. 111) on a piece of paper in her presence (Pl “1” for ID). Malul claims that when he arrived at the property on April 28th, Cabrera showed up with a man—a friend attorney, who started writing on the top portion of the document. Malul admitted to signing the document and writing the bottom half of the document commencing with the date 4/28/09. Malul stated that Cabrera insisted that he write down everything since she no longer trusted Mario. Malul told her that there was no reason to go to court and that she did not have to sue him. Rather than hiring an attorney, he would write it down and ensure that Mario would do the job he promised which Mario agreed to. Plaintiff asked him to do “a favor” about the cement because she did not want the water to come down on her property (Tr. 67–69).
Mario showed up and admitted that he owed plaintiff money-he had paid one water and electricity bill and owed some more money Mario also said he would fix up her broken back yard. Malul said he agreed to fix the fence since the Department of Buildings (“DOB”) would not accept the type of rusted pre existing fence. and had directed him to take it down since it was right on the line dividing his property from plaintiff's.
The top of the piece of paper, written by Cabrera's friend, listed fence and debris removal with checks next to them, and trees and water leak in basement with no checks against them. Underneath, Malul drew a line with the date 4/28/09 and wrote down the following repairs he would complete within 30 days: 1) siding—change of a six foot high, 2) clean back yard garbage, 3) install in front of 443 Marion Street a 6 by 6 foot high chain link fence, 4) install new cement—3 by 30 in back of all new houses with water drain; 5) install plastic strip on back year new fence.
Although Malul and Cabrera agreed upon the list of items included on the document, plaintiff later returned with a friend and told Malul that she would not sign the document but would see him in court. Malul asked her to think about it and call him. She never called because her friend advised her not to sign anything unless it was in front of the judge. At the time Malul signed the document, she would have dropped the lawsuit had all the repairs indicated on the paper been done, including the replacement of the downed tree because that was very important to her. However, the damage continued so she decided not to sign the document.
The Court finds this document to be admissible as it is not a settlement contemplated by CPLR 2104. This section provides that “an agreement between parties ... relating to any matter in an action ... is not binding upon a party unless it is in a writing subscribed by him ...” The writing must incorporate all the material terms of the settlement. Bonnette v. Long Island College Hospital, 3 N.Y.3d 281, 285, 785 N.Y.S.2d 738, 819 N.E.2d 206 (2004); Mtr. Of Galasso, 35 N.Y.2d 319, 321, 361 N.Y.S.2d 871, 320 N.E.2d 618 (1974) (refusal to enforce a settlement agreement, although proposed in open court, since it did not reflect a complete agreement as to all material terms). The agreement must be subscribed to by those to be bound. Allstate Ins. Co. v. Marrano Dev. Corp., 26 A.D.3d 727, 809 N.Y.S.2d 697 (4th Dept.2006); Nordgren v. Nordgren, 264 A.D.2d 828, 695 N.Y.S.2d 588(2d Dept.1999).
The only exception to the subscribed writing requirement is for oral stipulations or concessions made in open court in the course of judicial proceedings before the court. Mtr. of Dolgin Eldert Corp. v. Dolgin, 31 N.Y.2d 1, 9, 334 N.Y.S.2d 833, 286 N.E.2d 228 (1972). The open court exception does not extend to a conference in a judge's chambers or stipulations outside the court room or outside formal judicial proceedings. Id . at 9, 10, 334 N.Y.S.2d 833, 286 N.E.2d 228.See, Weinstein—Korn—Miller, N.Y. Civ. Prac. para. 2104.03 (21–32). See also, Velazquez v. St. Barnabas Hosp., 13 N.Y.3d 894, 895 N.Y.S.2d 286, 922 N.E.2d 872 (2009) (purported settlement not binding upon parties where a disputed confidentiality agreement was never recorded or memorialized).
Here, no agreement was made in open court or filed with the county clerk. Nor does plaintiff's “1” mention, much less make Malul's agreement to fix certain items contingent upon plaintiff dropping the lawsuit. Simply put, the document does not constitute an out of court settlement and is admissible as an admission against interest. See, Mtr of Dolgin Eldert Corp., 31 N.Y.2d 1, 11, 334 N.Y.S.2d 833, 286 N.E.2d 228 (1972); Andre–Long v. Verizon Corp., 31 A.D.3d 353, 354, 819 N.Y.S.2d 56 (2d Dept 2006). Furthermore, only Malul signed his name to the supposed agreement. The absence of Cabrera's signature further negates any argument that this constituted a settlement.
Nor is the document and testimony related to said document excluded under CPLR 4547, as urged by defendant. This provision provides in relevant part: “Evidence of ... furnishing, or offering ... to furnish ... any valuable consideration in compromising ... a claim which is disputed as to either validity or amount of damages, shall be inadmissible as proof of liability for or invalidity of the claim ... Evidence of any conduct or statement made during compromise negotiations shall also be inadmissible. The provisions of this section shall not require the exclusion of any evidence, which is otherwise discoverable, solely because such evidence was presented during the course of compromise negotiations.” (Emphasis Added).
This provision codifies the common law rule that the settlement of a disputed claim or an offer to settle the claim is inadmissable to prove either the liability of the alleged wrongdoer or the weakness of the cause of action. Alexander Commentaries, Book 7B, McKinney's, CPLR 4547 pp 842 et seq. The statute applies the rule of exclusion only when the claim or its amount was “disputed” at the time of communication. Id. Whether a genuine dispute “existed at the time of the relevant communication is a question of fact” that must be decided by the court as a preliminary matter. Id at 842, 819 N.Y.S.2d 56.
Evidence of a compromise may be used to show credibility, since credibility is an issue separate from liability, placing the settlement evidence when directed toward impeachment, outside the ban of the exclusionary rule. Hill v. Arnold, 226 A.D.2d 232, 640 N.Y.S.2d 892 (1st Dept 1996). A settlement agreement resolving other disputes and not used to show liability in an action may be admissible. Chevere v. City of New York, 31 Misc.3d 337, 345, 920 N.Y.S.2d 572 (Sup.Ct., Richmond Co.2010); 3 Cottage Place LLC v. Cohen, Tauber, Spievack & Wagner, 2008 N.Y. Slip Op 30538(U), 2008 N.Y. Misc. LEXIS 8343 (Sup.Ct., N.Y. Co.2008) (nothing within the four corners of the Herzog letter to indicate that it was drafted in anticipation of settlement with plaintiff); Biotronik, A.G. v. Conor Medsystems Ireland, Ltd., 2011 N.Y. Slip Op 51980(U), 33 Misc.3d 1219(A).
A statement made during settlement negotiations is immaterial, for while an offer of settlement would be inadmissible, admissions made in the course of such negotiations are not. Bellino v. Bellino Constr. Co., 75 A.D.2d 630 (2d Dept.1980). In Alternatives Federal Credit Union v. Olbios, 14 A.D.3d 779, 787 N.Y.S.2d 508 (3rd Dept.2005), the court found letters where the defendant openly acknowledged its responsibility for indemnifying plaintiff for the cost of the remediation effort to be outside the scope of CPLR 4547. The letters were not offers to settle or compromise any claim with respect to the issue of liability but rather were written to explain defendant's delay in accepting responsibility for the cost of clean up and only disputed the cost. Similarly, a letter which clearly acknowledged defendant's liability and his corresponding intent to satisfy the underlying debt was admissible even though it contained a summary of previous attempts to ascertain the total mount of money due. Murray v. Farrell, 97 A.D.3d 953, 948 N.Y.S.2d 721 (3rd Dept.2012).
The Court finds the exception to CPLR 4547 applies in the instant matter. First, at the time Malul wrote this document, there is no evidence that defendant disputed that it was liable for the damage to plaintiff's property. In fact, on the date the written statement to do repairs was drawn up, defendant had not yet even interposed an answer much less raised the affirmative defense of an independent contractor. Furthermore, this writing corroborates Malul's testimony before the court. Finally, Malul openly acknowledged that he was responsible for number 3—to build a six by six chain link fence in front of 443 Marion since the DOB would not accept the type of rusted pre existing fence. and had directed him to take it down. As such, plaintiff's “1” does not constitute an offer to settle or compromise a claim and it is admissible. Malul asserts that he hired a company to put up the fence and Mario did all the other repairs. Malul claims that Mario finished everything on the list within five days. Plaintiff states that only some of the repairs were done.
The testimony is unclear as to whether Malul ever built the six by six foot fence in front of Marion Street. If it was not built, Malul is responsible for this fence. Malul must also install a water drain in the new cement he laid on the back of the all the houses and fill any existing spaces between the new cement and the side of plaintiff's home. Malul also must change part of the siding with the same color.. Since plaintiff's one does not mention about the water and electricity bill, Malul is not responsible to pay any more on that issue. Nor is Malul responsible for the trees, as the same is not part of plaintiff's one.
Independent Contractor
The general rule is that a party who retains an independent contractor, rather than a mere employee, is not liable for the independent contractor's negligent acts. Kleeman v. Rheingold. 81 N.Y.2d 270, 273, 598 N.Y.S.2d 149, 614 N.E.2d 712 (1993); Rosenberg v. Equitable Life Assur. Society, 79 N.Y.2d 663, 668, 1992, 584 N.Y.S.2d 765, 595 N.E.2d 840). However, this general rule is now primarily important “as a preamble to the catalogue of its exceptions.” Kleeman, supra, 81 N.Y.2d at 274, 598 N.Y.S.2d 149, 614 N.E.2d 712. See, Brothers v. N.Y, State Elec. & Gas Corp., 258 (2008). Thus, an employer may be liable for the work of an independent contractor where it is “(1) under a statutory duty to perform of control the work ... or (3) is under a duty to keep premises safe ...:, Rosenberg, supra, 79 N.Y.2d at 668, 584 N.Y.S.2d 765, 595 N.E.2d 840.See, Allstate Ins. Co. v. Raposo Homes Mgmt., LLC, 2012 N.Y. Slip Op 32098(U), 2012 NY. Misc. LEXIS 3834, 2012 WL 3276719 (Sup Ct., Queens, CO.2012); 532 39 Realty, LLC v. LMW Engineering Group LLC 2012 N.Y. Slip Op 32798(U), 2012 N.Y. Misc. LEXIS 5333, 2012 WL 5998346 (Sup Ct., N.Y. Co.2012).
Upon reviewing the evidence, the Court finds that Ecuador Construction was an independent contractor as opposed to an employee of Green Complex Inc. However, the inquiry does not stop with this conclusion.
According to Malul, Ecuador came into the picture after excavation was completed and the excavated site had to be filled. Defendant used some unnamed other contractor to complete the excavation work that was commenced prior to his owning the property. Therefore, the existence of Ecuador and or the agreement between defendant and Ecuador is irrelevant to the question of who was responsible for the damage caused to plaintiff's property due to excavation work.
The Court inquired of both parties as to why Mario of Ecuador Construction was not called as a witness. Counsel for plaintiff responded that there was no mention of “Mario” or Ecuador Construction until the commencement of the proceeding when plaintiff informed him that Mario was conducting work on behalf of Green complex. Malul asserts that he has not been in contact with Mario for over three years.
NYC Admin. Code 3309.4, entitled “Excavation or filling operations affecting adjoining property” states in pertinent part:
“Regardless of the excavation or fill depth, the person who causes an excavation or fill to be made shall, at all times and at his or her own expense, preserve and protect from damage any adjoining structures, provided such person is afforded a license in accordance with the requirements of Section 3309.2 to enter and inspect the adjoining buildings and property, and to perform such work thereon as may be necessary for such purpose.”
This municipal provision imposes upon a property owner and its contractors “a statutory duty to protect adjoining structures during the course of excavation work.” 532 39 Realty v. LMW Engineering Group LLC, 2012 N.Y. Slip Op 32798(U), 2012 N.Y. Misc. LEXIS 5333, 2012 WL 5998346 (Sup.Ct., N.Y.Co.2012) at 18. The courts have treated this provision and its predecessor, section 27–1031(b)(1) as a negligence per se statute. American Security Ins. Co., v. Church of God of St. Albans, 38 Misc.3d 274, 956 N.Y.S.2d 799 (Sup.Ct., Queens Co., 2012). This municipal provision falls within the exception that, “an employer may be liable for an independent contractor's acts where it is under a statutory duty to perform or control the work.” 532 Realty, supra at 16.Given the hazardous nature of the work delegated, this section imposes a duty as a matter of law upon the prime contractor or wonder, even if that person had no actual involvement in the work. Id at 21.
In Yemen Corp. v. 281 Broadway Holdings, 18 N.Y.3d 481, 490–91, 941 N.Y.S.2d 20, 964 N.E.2d 391 (2012) the Court explained that Sec.27–1031(b)(1) of the Administrative Code, the predecessor to the current § 3309.4, was a strict liability statute despite the fact that it was a municipal ordinance since its language and purpose was virtually identical to its state law predecessor. “Its original purpose of shifting the risk of injury from the injured landowner to the excavator of adjoining land has remained constant.... {This section} continued to embody the specific legislative policy that in New York City those who undertake excavation work, rather than those whose interest in neighboring land is harmed by it, should bear its costs.” 18 N.Y.2d at 491, 276 N.Y.S.2d 993, 223 N.E.2d 489.
In American Security, supra, the court adhered to Yemen in holding that the new section 3309.4 constituted a strict liability statute. 38 Misc.3d at 280, 956 N.Y.S.2d 799. The court rejected defendants' contention that plaintiff's building's allegedly poor condition raised an issue of fact as to causation, noting that “though certainly relevant to any measure of damages, consideration of the building's prior condition does not factor into a proximate cause analysis.” The court also rejected the owner's contention that it could not be held liable since the subcontractor did not follow its underpinning plan. Section 3309.4 of the building code applies to any person “who causes an excavation' to be made” and it was the owner defendant who had planned for excavation to occur under the plaintiff's property. Id at 280, 956 N.Y.S.2d 799. Therefore, owners and excavators are strictly liable under this statutory provision for work that “causes damage to adjoining property, regardless of the care exercised.” Id. at 280, 956 N.Y.S.2d 799.
Green Complex owned the adjacent property, planned for the excavation and boring of the adjacent property, and hired Ecuador Construction to complete the job after the initial contractor defaulted. Based upon the aforementioned precedent, this court finds defendant strictly liable for the damage to plaintiff's exterior property caused by the excavation and filling. By the same token, defendant is not liable under § 3309.4 for Ecuador's downing of her tree or Mario's promise to pay plaintiff for the water and electricity bills.
Plaintiff obtained a written estimate for the damage done to the exterior part of her home by T & C Construction. (Pl.“3”). The Court allowed this document into evidence and finds that it is not necessary to bring in an expert witness to prove how much the property is worth due to the damage. “An owner of property, with a modicum of qualifying experience, may offer a lay opinion as to its value.” S.A.B. Enterprises, Inc. v. Village of Athens, 164 A.D.2d 558, 565, 564 N.Y.S.2d 817, (3d Dept 1991). See, Lizden Indus., Inc. v. Franco Belli Plumbing & Heating, 2011 N.Y. Slip Op 32335(U), 2011 N.Y. Misc. LEXIS 4247, 2011 WL 3898088 (Sup.Ct., N.Y. Co.2011).
It is well established that the “proper measure of damages for permanent injury to real property is the lesser of the decline in market value and the cost of restoration.” Jenkins v. Etlinger, 55 N.Y.2d 35, 39, 447 N.Y.S.2d 696, 432 N.E.2d 589 (1982). A “plaintiff need only present evidence as to one measure of damages, and that measure will be used when neither party presents evidence going to the other measure.” Id. As a “mitigation” issue, the burden falls upon the defendant to prove that a lesser amount than that claimed by plaintiff will sufficiently compensate for the loss.” Id. See also Fisher v. Qualico Contracting Corp., 98 N.Y.2d 534, 539, 749 N.Y.S.2d 467, 779 N.E.2d 178 (2002); Prop. Owners Ass'n of Harbor Acres, Inc. v. Ying, 137 A.D.2d 509, 510, 524 N.Y.S.2d 252 (2nd Dept 1988) (“While it is a “long established rule that the proper measure of damages for permanent injury to real property is the lesser of the decline in market value and the cost of restoration”, the burden is on the defendant, “to prove that a lesser amount than that claimed by plaintiff will sufficiently compensate for the loss”).
A trial court may render an award on damages as it finds warranted by the facts. MMI Trading v. American Waste Mgmt., 98 A.D.3d 604, 949 N.Y.S.2d 743 (2d Dept.2012). So long as the figure arrived at has a reasonable basis of computation and is not “merely speculative, possible or imaginary,” a court may resort to reasonable conjectures and probable estimates and to make the best approximation possible through the exercise of good judgment and common sense in arriving at that amount.” Curiale v. Peat, Marwick, Mitchell & Co.,, 214 A.D.2d 16, 25, 630 N.Y.S.2d 996(1st Dept.1995).
Having determined that plaintiff cannot recover for damages inside her home due to water seepage since she presented no evidence on damages, this court must determine how much plaintiff can recover for damage to her real property based upon either the excavation/demolition work for which defendant is strictly liable or Malul's failure to repair any of the five items included in plaintiff's “1” or for damage for which defendant is strictly liable. Based upon the testimony, the Court finds that the sloping of plaintiff's sidewalk and the attendant water seepage falls within damage caused by excavation and filling, as does the hole in the siding of plaintiff's house. It also appears that Malul still must install a water drain in the new cement he laid on the back of all the houses he built, and fill in any gaps between the new cement and the side of plaintiff's home. and a plastic strip on the back yard fence.
.However, plaintiff's estimate for the repair of property damage does not delineate the cost of repairing the sloping cement. The Court has excluded the cost of replacing the trees from its award of damages and is unable to calculate, from the evidence provided, n award on the damages for which it has found defendant liable. Where damages are shown to exist but proof as to amount is insufficient, remand for a new trial as to those damages is appropriate” Manniello v. Dea, 92 A.D.2d 426, 429 [1983] [citations omitted]. See, Lopez v. Adams, 69 A.D.3d 1162, 2267, 895 N.Y.S.2d 532 (3d Dept.2010); Jerry B. Wilson Roofing & Painting v. Jobco–E. R. Kelly Assoc., 128 A.D.2d 953, 955, 513 N.Y.S.2d 263 (3rd Dept 1987), lv denied and dismissed70 N.Y.2d 828, 523 N.Y.S.2d 490, 518 N.E.2d 2 (1987).
In an attempt to resolve the issue of damages without having a new trial, the Court directs the parties to submit documentation as to the cost or repairing the damages listed above and or proof that defendant in fact did repair certain of these damages by July 1, 2013. The Court will then conference with the parties as to how to resolve any remaining issues as to damages.
This constitutes the decision and order of the Court.