DILAPI v. EMPIRE DRILLING BLASTING INC

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

John DILAPI, et al., respondents, v. EMPIRE DRILLING & BLASTING, INC., appellant.  (Action No. 1)

Rudolph Rienzo, et al., respondents, v. Empire Drilling & Blasting, Inc., appellant.  (Action No. 2).

Decided: May 26, 2009

PETER B. SKELOS, J.P., MARK C. DILLON, JOSEPH COVELLO, and JOHN M. LEVENTHAL, JJ. Floyd G. Cottrell (Melito & Adolfsen, P.C., New York, N.Y. [Ignatius John Melito and Paul F. McAloon] of counsel), for appellant. James P. Harris, Goshen, N.Y., for respondents.

In related actions, inter alia, to recover damages for injury to property, the defendant appeals from (1) a judgment of the Supreme Court, Orange County (Owen, J.), entered January 9, 2008, which upon a decision of the same court dated December 6, 2007, made after a nonjury trial, is in favor of the plaintiffs in Action No. 1 and against it in the principal sum of $161,184, and (2) a judgment of the same court also entered January 9, 2008, which, upon the same decision, is in favor of the plaintiffs in Action No. 2 and against it in the principal sum of $478,000.

ORDERED that the judgments are affirmed, with one bill of costs.

“In reviewing a determination made after a nonjury trial, the power of the Appellate Division is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account in a close case that the trial judge had the advantage of seeing the witnesses” (ProHealth Care Assoc., LLP v. Shapiro, 46 A.D.3d 792, 793, 849 N.Y.S.2d 276;  see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 470 N.Y.S.2d 350, 458 N.E.2d 809).   We find no basis in the record to disturb the Supreme Court's determination that there was a causal connection between the defendant's blasting work and the claimed property damage to the plaintiffs' premises.

 Moreover, contrary to the defendant's contention, the damages awarded by the court in both actions were “warranted by the facts” (Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d at 499, 470 N.Y.S.2d 350, 458 N.E.2d 809) “While it is a ‘long-established rule that the proper measure of damages for permanent injury to real property is the lesser of the decline in market value and the cost of restoration,’ the burden is on the defendant, ‘to prove that a lesser amount than that claimed by plaintiff will sufficiently compensate for the loss' (Jenkins v. Etlinger, 55 N.Y.2d 35, 39, 447 N.Y.S.2d 696, 432 N.E.2d 589;  Benavie v. Baker, 72 A.D.2d 541, 420 N.Y.S.2d 735;  Hartshorn v. Chaddock, 135 N.Y. 116, 31 N.E. 997)” (Property Owners Assn. of Harbor Acres v. Ying, 137 A.D.2d 509, 510, 524 N.Y.S.2d 252).   The plaintiffs in Action No. 1 presented evidence of the cost of repairing the damage to their property.   However, the defendant failed to present any evidence regarding the diminished value of the Dilapis' property or the cost of repairs.   The plaintiffs in Action No. 2 presented evidence of the cost of restoring their property.   The Supreme Court's determination not to credit the appraisal of the property proffered by the defendant was proper because the appraiser testified at trial that his appraisal was based on the wrong square footage and did not establish the value of the home in June 2005 when the property damage occurred.

The defendant's remaining contention is without merit.

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