ROSENBAUM v. ATLAS DESIGN CONTRACTORS INC

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Supreme Court, Appellate Division, First Department, New York.

Richard ROSENBAUM, Plaintiff-Respondent-Appellant, v. ATLAS & DESIGN CONTRACTORS, INC., Defendant-Appellant-Respondent.

Decided: October 22, 2009

FRIEDMAN, J.P., McGUIRE, MOSKOWITZ, ACOSTA, DeGRASSE, JJ. Raymond E. Kerno, Mineola, for appellant-respondent. Stroock & Stroock & Lavan LLP, New York (Kevin L. Smith of counsel), for respondent-appellant.

Judgment, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered July 17, 2008, after a nonjury trial, awarding plaintiff the principal sum of $46,467.75 for wilful exaggeration of a lien and dismissing defendant's counterclaims, unanimously affirmed, without costs.

 The credibility-based determination that defendant had wilfully exaggerated the value of its services, rather than merely made an honest mistake (see Goodman v. Del-Sa-Co Foods, 15 N.Y.2d 191, 194-195, 257 N.Y.S.2d 142, 205 N.E.2d 288 [1965] ), was based on a fair interpretation of the evidence (see Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [1992] ).   Contrary to defendant's contention, denial of its counterclaim for breach of contract was not based on improper linkage with the determination that the lien was forfeited;  rather, the ruling was premised on the credibility-based rejection of defendant's argument that its fees were largely for design services and the recognition that when its contract was terminated it had not yet commenced any of the physical construction it had undertaken.   Having terminated the construction contract pursuant to its at-will termination provision, plaintiff was not entitled to damages for breach;  in any event, the “proposed” time frame set forth was precatory and thus did not give rise to termination for cause or support an action for breach.

We have considered the parties' other contentions for affirmative relief and find them unavailing.