Opinion
12764 Index No. 654298/13 Case No. 2019-03273
01-05-2021
OLD HOUSE LANE, LLC, Plaintiff–Appellant, v. SILVERSTEIN CONTRACTING & DEVELOPMENT CORP., Defendant–Respondent.
Tashlik Goldwyn Levy LLP, Great Neck (Jeffrey N. Levy of counsel), for appellant. Canfield Ruggiero LLP, Garden City (John P. Ruggiero of counsel), for respondent.
Tashlik Goldwyn Levy LLP, Great Neck (Jeffrey N. Levy of counsel), for appellant.
Canfield Ruggiero LLP, Garden City (John P. Ruggiero of counsel), for respondent.
Renwick, J.P., Gische, Kern, Oing, Mendez, JJ.
Judgment, Supreme Court, New York County (Carol Edmead, J.), entered May 7, 2019, after a nonjury trial, awarding defendant damages on its counterclaim for breach of contract, unanimously affirmed, with costs.
Plaintiff argues that it should have been awarded a full refund of the sum it paid to defendant for its services as a construction manager because defendant left the project before it was complete, and the parties' contract was indivisible. This argument, which is inconsistent with plaintiff's claim at trial, is raised for the first time on appeal and therefore is unpreserved for appellate review (see Massie v. Crawford, 289 A.D.2d 66, 67, 734 N.Y.S.2d 40 [1st Dept. 2001], lv denied 98 N.Y.2d 693, 747 N.Y.S.2d 410, 775 N.E.2d 1290 [2002] ). In any event, defendant is entitled to recover for the value of services it provided (see New Era Homes Corp. v. Forster, 299 N.Y. 303, 306, 86 N.E.2d 757 [1949] ), as plaintiff recognized at trial when it contended that defendant was entitled to receive a portion of its fee proportionate to the amount of the project that was completed. The trial court determined that defendant was entitled to compensation for the services it provided and that fair compensation for those services was the monthly payments that the parties agreed to in the contract, modified downward as the project was delayed (see United Bldg. Maintenance Assoc., Inc. v. 510 Fifth Ave. LLC, 18 A.D.3d 333, 795 N.Y.S.2d 535 [1st Dept. 2005] ). This determination rests on a fair interpretation of the trial evidence (see Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [1992] ).