Opinion
0121152/2003.
Dated: July 6, 2007.
DECISION ORDER JUDGEMENT
These actions arise from the renovation of a seven-story building located at 128-138 Mott St. 128-138 Mott. St., LLC ("Mott St."), the owner of the building, borrowed money for the renovation from the Bank of East Asia (the "Bank") and hired Panacea, Inc. ("Panacea") as its general contractor. The remaining named parties were subcontractors on the project, hired by Panacea. Action Number 1 involved mechanics' liens tiled against Mott St., and Action Number 2 involved Mott St.'s claims alleging breach of contract, slander of title, exaggeration of Panacea's and Rigid Electric, Inc. ("Rigid")'s liens and lost rental income.
The cases were jointly tried before me, and a decision was rendered in October 2006, awarding judgments of foreclosure to Elbrus Air Conditioning Service, Inc. ("Elbrus") for $77,050.00 with interest at the statutory rate from October 31, 2003, to Rigid for $244,318.00 with interest at the statutory rate from December 4, 2003 and to Panacea for $3,433.12 with interest at the statutory rate from November 25, 2003. Hoffman Floor Covering Corp. settled its action, and the action of Avcon Design Group, Inc. was dismissed and its mechanic's lien discharged. Judgment was rendered in favor of Panacea and Rigid and against Mott. St. in its action. The Court presumes familiarity with its previous decision.
Panacea now moves to modify the decision and order of the court by increasing its award. Mott St. cross-moves to set aside the judgments, deny the judgments of foreclosure and award it damages in the amount of $155,154.00 against Panacea on its breach of contract claim, with interest from July 1, 2003. Panacea, Rigid and Elbrus oppose the cross-motion, and Rigid cross-moves to amend the wording of the court's order, nunc pro tunc.
I. Panacea's Reargument Motion
Panacea argues that the decision of the court should be modified by increasing the award to it by $ 150,154.00, the amount of offsets the court found was spent by Mott St. to complete the contracted-for work. It contends that the offsets should not be awarded Mott St., because the court overlooked the fact that Mott St. hired others to complete the offset work without first notifying Panacea of this incomplete/defective work and giving Panacea the opportunity to complete or correct the work. Alternatively, it argues the award to it should be increased by $93,354.00, the offsets, minus $56,800.00, because the court overlooked the following: that on September 9, 2003, the Bank, after inspection and before releasing further money to Mott St., determined that work on the 2nd to 7th floors of the subject premises was completed and the premises in excellent operating condition; that on September 15, 2003, Mott St. certified to the Bank that the only remaining work to be completed on the premises was valued at $56,800.00, in order to draw down money; and that on September 16, 2003, Mott St. submitted to the Bank a certification with the forged signature of Mr. Soh in support of the draw down of the $56,800.00.
The court does not believe that it overlooked these facts in rendering its decision. The relationship between the parties had broken down in August 2003, Panacea demanding more money to complete the project and Mott St. unhappy with the overages and the progress of the project, which was eight months behind schedule. The project was at a standstill unless Mott St. paid Panacea the money it demanded. Mott St., instead, hired other contractors to complete the work. The costs expended by Mott St. to complete the work were reasonable. Moreover, throughout the project, both Panacea and Mott St. repeatedly falsified paperwork. The court, therefore, could not rely solely on the paperwork filled out by either of these parties, since such paperwork often contradicted testimony and other documentary evidence. Finally, the statement of the Bank was considered by the court together with the voluminous documentary evidence submitted and the days of testimony. Panacea's motion for reargument, thus, is denied.
II. Mott St.'s Reargument Motion
Mott St. contends that damages should have been denied to Panacea, Rigid and Elbrus and that it should have been awarded $155,154.00. It bases its contentions on the grounds that: Panacea, through its principal Mr. Soh, repeatedly perjured himself; Rigid's claim was fraudulent and unbelievable, and the award to it "had no basis in law and fact"; and Elbrus is not owed money by Mott St. since it is a subcontractor who cannot collect if Mott St. docs not owe money to the general contractor, Panacea. In essence, Mott St. takes issue with the credibility findings of the court. Mott St. further argues that Elbrus' award should be reduced to $60,800.00 from $77,050.00 since it originally demanded the lesser amount and never amended its pleading to conform to the proof. The court recognizes that Elbrus never amended its ad damnum clause to conform to the proof and now, sua sponte, amends that demand to conform to the trial proof, nunc, pro tunc. See Murray v. City of New York, 43 N.Y.2d 400 (1977). Accord Paton v. Weltman, 23 A.D.3d 895, 896 (3rd Dept. 2005); Aronov v. Regency Gardens Apt., 15 A.D.3d 513, 514 (2nd Dept. 2005); Amy H. v. Chautaugua Co. Dept. Of Soc. Servs., 13 A.D.3d 1048, 1050 (4th Dept. 2004); Greenfield v. Philles Records. Inc., 288 A.D.2d 59 (1st Dept. 2001), modified on other grds. 98 N.Y.2d 562 (2002). In all other respects, the decision is not disturbed since the court based that decision upon its findings of credibility after assessing days of contentious, divergent testimony and sifting through contradictory documents.
III. Rigid Electric's Motion to Amend the Decretal Paragraph
Rigid moves the court to modify the last decretal paragraph to reflect language required by the Clerk of the Court in order to enter judgment. The court will grant this motion.
Accordingly, it is
ORDERED that the motion of Panacea to modify the decision and order of the court by increasing its award, is denied; and it is further
ORDERED that the cross-motion of Mott St. to set aside the judgments, deny the judgments of foreclosure and award it damages in the amount of $155,154.00 against Panacea, is denied; and it is further
ORDERED that the cross-motion of Rigid to modify the last paragraph of its decision, is granted, the last decretal paragraph of the decision/order is vacated, recalled and substituted with the following:
ORDERED that judgment of foreclosure and sale upon the mechanic's liens of defendants Elbrus Air Conditioning Services, Inc., Rigid Electric, Inc. and Panacea, Inc. be entered by this Court in the form of said judgment presented to this Court for settlement thereof.