MCMULLEN v. MOROCHO (2024)

ORDERED that the judgment is modified by increasing the award in favor of plaintiff to the principal sum of $4,000; as so modified, the judgment is affirmed, without costs.

Plaintiff commenced this small claims action for breach of contract seeking to recover the sum of $5,000, the amount she had to pay a second contractor to finish construction on her basement after defendant failed to do so. At a nonjury trial, the evidence revealed that plaintiff and defendant entered into a contract to finish her basement for a total price of $23,000 and that plaintiff had paid defendant $20,000 of that amount. Plaintiff testified that only 60 percent of the work had been completed when defendant left and she hired another contractor to finish the job for $7,000. While defendant stated that he had completed 98 percent of the job, the City Court (Tamika A. Coverdale, J.) credited plaintiff's testimony that only 60 percent of the job had been completed, and awarded plaintiff $2,000, or 40 percent of $5,000, the maximum amount allowed to be recovered in the Small Claims Part of the City Court (see UCCA 1801). Plaintiff appeals on the ground of inadequacy.

In a small claims action, our review is limited to a determination of whether “substantial justice has ․ been done between the parties according to the rules and principles of substantive law” (UCCA 1807; see UCCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]).

We agree with plaintiff that the City Court miscalculated the damages. The proper measure of damages in a case such as this, where the contractor left the job after completing only a portion of the work required to be performed under the contract, is the difference between the contract price and the cost of completing the work left undone (see Home Constr. Corp. v Beaury, 149 AD3d 699 [2017]; Tapalaga v Gabrielli, 284 AD2d 530 [2001]; Sarnelli v Curzio, 104 AD2d 552 [1984]). The evidence established that the contract price was $23,000, that plaintiff had paid defendant $20,000 and that the cost of completing the work with another contractor was $7,000. Thus, substantial justice will be rendered (see UCCA 1804, 1807) by increasing the award in favor of plaintiff to the principal sum of $4,000, making plaintiff's total out-of-pocket expenditures equal to the amount she was required to pay under the contract with defendant.

Accordingly, the judgment is modified by increasing the award in favor of plaintiff to the principal sum of $4,000.

DRISCOLL, J.P., WALSH and GOLDBERG-VELAZQUEZ, JJ., concur.