HALSEY v. CONNOR (2001)

In an action to recover damages for breach of a construction contract, the defendant appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Suffolk County (Klein, J.), entered June 23, 2000, as, after a nonjury trial, is in favor of the plaintiff and against him in the principal sum of $30,200, and the plaintiff cross-appeals from so much of the same judgment as failed to award him prejudgment interest.

ORDERED that the judgment is reversed insofar as appealed and cross-appealed from, on the law, without costs or disbursements, and a new trial is ordered on the issue of damages which are to be calculated as of September 28, 1996, the date of the breach of contract, including an award of prejudgment interest in accordance herewith;  the findings as to liability are affirmed.

Pursuant to a contract dated August 18, 1995, the defendant agreed to provide renovation work to a residence owned by Edna Halsey.   The installation of the hardwood flooring was performed by a subcontractor in March 1996 and was completed on September 28, 1996.   The plaintiff subsequently noticed excessive gaps between the planks of the hardwood flooring and commenced this action for breach of contract.   After a nonjury trial, the Supreme Court credited the testimony of the plaintiff's witnesses and rejected the testimony and arguments offered by the defendant, finding that the installation of the hardwood floor did not meet the requirements of the contract and had to be replaced.   The Supreme Court also determined that the plaintiff's expert testimony as to the amount of damages was uncontroverted.   A judgment was entered in favor of the plaintiff and against the defendant in the principal sum of $30,200.   The Supreme Court denied the plaintiff's application for an award of prejudgment interest on the ground that he failed to definitively establish the date of accrual of the cause of action.

 The proper measure of damages is the cost to replace the defective flooring as of September 28, 1996, the date the cause of action accrued (see, Brushton-Moira Cent. School Dist. v. Thomas Assocs., 91 N.Y.2d 256, 669 N.Y.S.2d 520, 692 N.E.2d 551).   The damages were improperly measured as of the date of the trial or the date that the plaintiff's expert inspected the residence.   In addition, the Supreme Court erred in denying the plaintiff's application for an award of prejudgment interest pursuant to CPLR 5001.   Accordingly, a new trial is ordered to recalculate damages as of September 28, 1996, and to include an award of prejudgment interest in accordance herewith.

The defendant's remaining contentions are either unpreserved for appellate review or without merit.