Opinion
2013-04854, 2013-06994, 2015-02732
06-03-2015
MACK–CALI REALTY, L.P., et al., appellants-respondents, v. EVERFOAM INSULATION SYSTEMS, INC., respondent-appellant.
Wechsler & Cohen, LLP, New York, N.Y. (James F.X. Hiler and Mitchell S. Cohen of counsel), for appellants-respondents. Joseph Hirsch Connors Miller & Bull, P.C., New York, N.Y. (Richard C. Imbrogno of counsel), for respondent-appellant.
Wechsler & Cohen, LLP, New York, N.Y. (James F.X. Hiler and Mitchell S. Cohen of counsel), for appellants-respondents.
Joseph Hirsch Connors Miller & Bull, P.C., New York, N.Y. (Richard C. Imbrogno of counsel), for respondent-appellant.
L. PRISCILLA HALL, J.P., SANDRA L. SGROI, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.
Opinion In an action to recover damages for breach of contract and negligence, the plaintiffs appeal from (1) a decision of the Supreme Court, Westchester County (O. Bellantoni, J.), dated March 25, 2013, made after a nonjury trial, (2) a judgment of the same court entered April 15, 2013, and (3) an amended judgment of the same court entered June 11, 2013, which, upon a decision and order (one paper) of the same court entered May 9, 2013, inter alia, denying those branches of their motion which were pursuant to CPLR 4404 (b) for judgment in their favor on the cause of action alleging breach of contract, for an award of prejudgment interest from April 1, 2008, and for an award of attorney's fees, and for leave to amend the pleadings to conform to the evidence adduced at trial, is in favor of them and against the defendant in the principal sum of only $555,732.20, and the defendant cross-appeals from the same judgment and amended judgment.
ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 509–510, 472 N.Y.S.2d 718 ); and it is further, ORDERED that the appeal and the cross appeal from the judgment are dismissed, as the judgment was superseded by the amended judgment; and it is further,
ORDERED that the amended judgment is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof which is in favor of the plaintiffs and against the defendant on the cause of action alleging negligence, and substituting therefor a provision which is in favor of the plaintiffs and against the defendant on the cause of action alleging breach of contract, and (2) by adding a provision thereto dismissing the cause of action alleging negligence; as so modified, the amended judgment is affirmed, those branches of the plaintiffs' motion which were pursuant to CPLR 4404(b) for judgment in their favor on the cause of action alleging breach of contract, for an award of prejudgment interest from April 1, 2008, and for an award of attorney's fees, and for leave to amend the pleadings to conform to the evidence adduced at trial are granted, the decision and order entered May 9, 2013, is modified accordingly, and the matter is remitted to the Supreme Court, Westchester County, to determine the amount of prejudgment interest and attorney's fees to be awarded to the plaintiffs, and for the entry of an appropriate second amended judgment thereafter; and it is further,
ORDERED that one bill of costs is awarded to the plaintiffs.
The defendant installed spray foam insulation on the third and fourth floors of the plaintiffs' commercial building. The plaintiffs commenced this action against the defendant to recover damages for breach of contract and negligence, alleging that the defendant improperly installed the foam in some areas on the third floor, thereby causing a strong noxious odor in the third-floor space leased to Allstate Insurance Company. The Supreme Court awarded judgment in favor of the plaintiffs and against the defendant only with respect to the negligence cause of action.
The Supreme Court erred in determining that the “Quotation” listed as “Exhibit A” of the contract, which provided that the defendant would perform the installation of polyurethane spray foam “in strict accordance with the Manufacturers' specifications,” was not part of the contract. The contract specifically referenced and incorporated Exhibit A, and the parties stipulated that the Quotation was included as part of the contract (see Deitsch Textiles v. New York Prop. Ins. Underwriting Assn., 62 N.Y.2d 999, 1002, 479 N.Y.S.2d 487, 468 N.E.2d 669 ; Dental Health Assoc. v. Zangeneh, 80 A.D.3d 724, 724, 915 N.Y.S.2d 311 ). Furthermore, since the parties executed the contract, the parties' additional signatures were not needed on the Quotation (see Flores v. Lower East Side Serv. Ctr., Inc., 4 N.Y.3d 363, 369, 795 N.Y.S.2d 491, 828 N.E.2d 593 ; Furman v. Wells Fargo Home Mtge., Inc., 105 A.D.3d 807, 964 N.Y.S.2d 169 ).
Moreover, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to amend the pleadings to conform to the evidence adduced at trial. “Whether to permit a party to amend a pleading is generally a matter of discretion for the trial court and, on review, the Appellate Division” (Krichmar v. Krichmar, 42 N.Y.2d 858, 860, 397 N.Y.S.2d 775, 366 N.E.2d 863 ). Absent prejudice, courts are free, pursuant to CPLR 3025(c), to permit the amendment of pleadings, even after trial (see Kimso Apts., LLC v. Gandhi, 24 N.Y.3d 403, 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 ; Dittmar Explosives v. A.E. Ottaviano, Inc., 20 N.Y.2d 498, 502, 285 N.Y.S.2d 55, 231 N.E.2d 756 ). Leave shall be freely given upon such terms as may be just (see CPLR 3025[b] ). “This favorable treatment applies even if the amendment substantially alters the theory of recovery” (see Kimso Apts., LLC v. Gandhi, 24 N.Y.3d at 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 [internal quotation marks and citations omitted] ).
Here, the proposed amendment to the breach of contract cause of action does not alter the theory of recovery. The complaint alleged that the defendant failed to perform the work in a good and workmanlike manner, albeit in the context of the cause of action alleging negligence. Furthermore, the defendant, who has the burden of establishing prejudice (see Caceras v. Zorbas, 74 N.Y.2d 884, 885, 547 N.Y.S.2d 834, 547 N.E.2d 89 ), failed to assert that it would be prejudiced by permitting the plaintiffs to amend the complaint to conform to the evidence adduced at trial that the work was not performed in a good and workmanlike manner (see Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23, 444 N.Y.S.2d 571, 429 N.E.2d 90 ).
Accordingly, upon the evidence adduced at trial establishing that the defendant failed to install the insulation foam in strict accordance with the manufacturer's specifications and failed to perform the work in a good and workmanlike manner, that branch of the plaintiffs' motion which was pursuant to CPLR 4404(b) for judgment in their favor on the cause of action alleging breach of contract should have been granted. Furthermore, pursuant to the terms of the contract, the plaintiffs, as the prevailing party, are entitled to recover reasonable attorneys' fees as well as prejudgment interest. Such interest should be calculated from April 1, 2008, at the statutory rate of 9% (see CPLR 5001[a] ; Lovett, LLC v. Brown, 121 A.D.3d 1055, 995 N.Y.S.2d 217 ).
In addition, while we agree with the plaintiffs that the Supreme Court erred in determining, in effect, that since only 25% of the work performed was defective, the defendant “substantially performed” the contract (Novair Mechanical Corp. v. Universal Mgt. & Contr. Corp., 81 A.D.3d 909, 917 N.Y.S.2d 876 ; see Jerry B. Wilson Roofing & Painting v. Jobco–E.R. Kelly Assoc., 128 A.D.2d 953, 513 N.Y.S.2d 263 ; Sear–Brown Assoc. v. Blackwatch Dev. Corp., 112 A.D.2d 765, 492 N.Y.S.2d 266 ; Triple M. Roofing Corp. v. Greater Jericho Corp., 43 A.D.2d 594, 349 N.Y.S.2d 771 ), the court nevertheless properly permitted an offset against the plaintiffs' recovery. The plaintiffs would be granted a substantial windfall if awarded damages for the expense incurred for the remediation work needed without a setoff for the work properly performed since the majority of the foam insulation did not require removal and in fact was not removed from the building, and the defendant had not been paid for any of that insulation work (see Jerry B. Wilson Roofing & Painting v. Jobco–Kelly Assoc., 151 A.D.2d 896, 542 N.Y.S.2d 867 ).
As indicated, the gravamen of the cause of action alleging negligence is that the work performed under the contract was performed in a less than skillful and workmanlike manner. Such a cause of action sounds in breach of contract, not negligence (see Corrado v. East End Pool & Hot Tub, Inc., 69 A.D.3d 900, 900, 892 N.Y.S.2d 797 ; Staten Is. N.Y. CVS, Inc. v. Gordon Retail Dev., LLC, 57 A.D.3d 760, 763, 870 N.Y.S.2d 74 ; Panasuk v. Viola Park Realty, LLC, 41 A.D.3d 804, 805, 839 N.Y.S.2d 520 ). “The plaintiffs' allegations of negligence are ‘merely a restatement, albeit in slightly different language, of the ... contractual obligations asserted in the causes[s] of action for breach of contract’ ” (Park Edge Condominiums, LLC v. Midwood Lbr. & Millwork, Inc., 109 A.D.3d 890, 891, 971 N.Y.S.2d 463, quoting Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 390, 521 N.Y.S.2d 653, 516 N.E.2d 190 ; see Kallman v. Pinecrest Modular Homes, Inc., 81 A.D.3d 692, 692–693, 916 N.Y.S.2d 221 ; Corrado v. East End Pool & Hot Tub, Inc., 69 A.D.3d at 900–901, 892 N.Y.S.2d 797 ). Under such circumstances, the plaintiffs were not permitted to recover on the cause of action alleging negligence, and that cause of action should have been dismissed (see Park Edge Condominiums, LLC v. Midwood Lbr. & Millwork, Inc., 109 A.D.3d at 891, 971 N.Y.S.2d 463 ). The defendant's remaining contentions are without merit.