BRIDGE PUBLIC RELATIONS AND CONSULTING INC v. HYLAN ELECTRICAL CONTRACTING INC

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

BRIDGE PUBLIC RELATIONS AND CONSULTING, INC., respondent, v. HYLAN ELECTRICAL CONTRACTING, INC., appellant.

Decided: August 18, 2009

STEVEN W. FISHER, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and L. PRISCILLA HALL, JJ. Felix T. Gilroy, Staten Island, N.Y. (Thomas Torto and Jason Levine of counsel), for appellant.

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Richmond County (Gigante, J.), dated October 29, 2007, which, upon an order of the same court dated July 2, 2002, among other things, granting the plaintiff's motion for summary judgment on the issue of liability, upon a decision of the same court dated May 7, 2007, made after a nonjury trial on the issue of damages, finding that the plaintiff sustained damages in the principal sum of $191,454.06 and that the plaintiff is entitled to recover predecision interest pursuant to CPLR 5001 from December 1, 1998, and upon an order of the same court dated August 27, 2007, denying the defendant's motion pursuant to CPLR 4404(b) to set aside the decision as contrary to the weight of the evidence, is in favor of the plaintiff and against it in the total sum of $344,021.57.

ORDERED that the judgment is affirmed, without costs or disbursements.

 “[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Greenfield v. Philles Records, 98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, 780 N.E.2d 166;  see R/S Assoc. v. New York Job Dev. Auth., 98 N.Y.2d 29, 32, 744 N.Y.S.2d 358, 771 N.E.2d 240;  Reiss v. Financial Performance Corp., 97 N.Y.2d 195, 198, 738 N.Y.S.2d 658, 764 N.E.2d 958).  “A contract is unambiguous if the language it uses has ‘a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion’ ” (Greenfield v. Philles Records, 98 N.Y.2d at 569, 750 N.Y.S.2d 565, 780 N.E.2d 166, quoting Breed v. Insurance Co. of N.Am., 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 385 N.E.2d 1280;  see Krystal Investigations & Sec. Bur., Inc. v. United Parcel Serv., Inc., 35 A.D.3d 817, 818, 826 N.Y.S.2d 727).   It is “for [the] court to say, as matter of law, whether reasonable [people] may reasonably differ as to such meaning” (Hartigan v. Casualty Co. of Am., 227 N.Y. 175, 179, 124 N.E. 789;  see Breed v. Insurance Co. of N. Am., 46 N.Y.2d at 355, 413 N.Y.S.2d 352, 385 N.E.2d 1280).

 In this case, paragraph 2 of the agreement provides “[the plaintiff] shall receive 50% of all profits realized ․ on all projects referred and/or procured by [the plaintiff], after 10% overhead and all direct or indirect costs.”   The contract further provides that “[a]ny payments made pursuant to paragraph 3 ․ are understood to be part of the 10% overhead.”   Paragraph 3 of the agreement states “[the defendant] shall pay to [the plaintiff] the sum of Two Thousand Five Hundred ($2,500) Dollars per week and costed against each job as part of overhead.”

 Contrary to the defendant's contention, the Supreme Court properly determined that the agreement is unambiguous and that the weekly payments to the plaintiff were not to be deducted as independent costs under the agreement, but rather, were understood to comprise a portion of the 10% overhead (see Greenfield v. Philles Records, 98 N.Y.2d at 569-570, 750 N.Y.S.2d 565, 780 N.E.2d 166;  Krystal Investigations & Sec. Bur., Inc., 35 A.D.3d at 818, 826 N.Y.S.2d 727).   Where, as here, an agreement is not ambiguous, “there [is] no reason to resort to extrinsic evidence to interpret [it]” (Krystal Investigations & Sec. Bur., Inc., 35 A.D.3d at 818, 826 N.Y.S.2d 727;  see Greenfield v. Philles Records, 98 N.Y.2d at 569, 750 N.Y.S.2d 565, 780 N.E.2d 166;  Breed v. Insurance Co. of N. Am., 46 N.Y.2d at 355, 413 N.Y.S.2d 352, 385 N.E.2d 1280;  Hartigan v. Casualty Co. of Am., 227 N.Y. 175, 179, 124 N.E. 789).

 The defendant's contention that the Supreme Court erroneously calculated the plaintiff's share of the profits also is without merit.   The calculations proffered by the defendant on this appeal are contradictory and include numerous instances of double counting (see American Bldg. Supply Corp. v. Avalon Props., Inc., 32 A.D.3d 971, 973, 822 N.Y.S.2d 289).   Moreover, “the court's finding as to damages ․ was supported by the evidence and should not be disturbed” (Rockland Dev. Assoc. v. State of New York, 15 A.D.3d 381, 382, 790 N.Y.S.2d 169;  see American Psych Sys. v. Options Ind. Practice Assn., 276 A.D.2d 654, 655, 715 N.Y.S.2d 856).

Nor did the Supreme Court err in determining that the plaintiff is entitled to recover predecision interest from December 1, 1998.   Where “damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date” (CPLR 5001[b];  see Baer v. Anesthesia Assoc. of Mount Kisco, LLP, 57 A.D.3d 817, 870 N.Y.S.2d 92;  Hayden v. P. Zarkadas, P.C., 18 A.D.3d 500, 501, 795 N.Y.S.2d 278;  155 Henry Owners Corp. v. Lovlyn Realty Co., 231 A.D.2d 559, 560-561, 647 N.Y.S.2d 30).   Under the circumstances presented here, December 1, 1998, constituted a “single reasonable intermediate date” under CPLR 5001(b), and the Supreme Court did not improvidently exercise its discretion in calculating the predecision interest (see Fiorello v. Raheb, 271 A.D.2d 402, 402, 706 N.Y.S.2d 883;  Falcone v. EDO Corp., 141 A.D.2d 498, 500, 529 N.Y.S.2d 123).

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