FOURTEEN HILLS BUILDING CORP v. USI (2007)

In an action, inter alia, to recover damages for breach of a construction contract, and a related action to foreclose a mechanic's lien, which were jointly tried, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Spinner, J.), dated July 6, 2006, which, after a nonjury trial, is in favor of the defendants and against the plaintiff on the counterclaims alleging breach of contract in the principal sum of $122,720 and, inter alia, in effect, dismissed the complaints in both actions.

ORDERED that the judgment is affirmed, with costs.

Pursuant to a clause in the subject construction contract, the defendants had the absolute right to cancel the contract in the event that the building permit was denied as a result of overclearing or height restrictions.   There was unrefuted evidence that the building permit for the subject property was denied due to overclearing of the property by the plaintiff during the construction of the house.   Based upon this unrefuted evidence, the defendants were entitled to cancel the contract, and the court properly, in effect, dismissed the complaints and awarded the defendants the principal sum of $122,720 on their counterclaims alleging breach of contract (see Arons v. Charpentier, 36 A.D.3d 636, 828 N.Y.S.2d 482;  United Consol. Indus. v. Mendel's Auto Parts, 150 A.D.2d 768, 542 N.Y.S.2d 214).

The plaintiff's remaining contentions are without merit.