Regalis Constr., Inc. v. Wonder Works Constr. Corp. , 2021 NY Slip Op 02084 ( 2021 )

Regalis Constr., Inc. v Wonder Works Constr. Corp. (2021 NY Slip Op 02084)

Regalis Constr., Inc. v Wonder Works Constr. Corp.

2021 NY Slip Op 02084

Decided on April 01, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 01, 2021
Before: Manzanet-Daniels, J.P., Kern, González, Shulman, JJ.

Index No. 101863/12 Appeal No. 13492 Case No. 2020-02654

[*1]Regalis Construction, Inc., Plaintiff-Respondent,

v

Wonder Works Construction Corp., Defendant-Appellant.

Tsyngauz & Associates, P.C., New York (Bansari Sheth of counsel), for appellant.

Daniel S. Perlman, Scarsdale, for respondent.

Judgment, Supreme Court, New York County (Carol Ruth Feinman, J.), entered December 24, 2019, after a nonjury trial, to the extent appealed from, awarding plaintiff damages in the amount of $54,067.67 plus statutory interest retroactive to January 12, 2009 for a total sum of $109,586.02, and bringing up for review an order, same court and Justice, entered on or about December 13, 2019, which awarded plaintiff said total sum, unanimously modified, on the law and the facts, to reduce the amount of the judgment to $35,148.04 plus statutory interest, and otherwise affirmed, without costs.

The evidence at trial did not support judgment in favor of plaintiff for the outstanding invoices for the project at 111 Fulton Street (Invoices WW-09-11-02 - $2,360; WW-10-01-18 - $1,620; and WW-10-01-25 - $3,810), as the documentary evidence establishes that plaintiff signed a release providing that upon payment of $5,158.54, plaintiff released both defendant and another company from any claims in connection with the project and that this payment was made by defendant.

The court also erred in awarding plaintiff judgment as to the outstanding invoice for work done at the apartment of Wonder Works's president, Joseph Klaynberg (WW-11-07-08 - $2,450), as the evidence, including Ivana Pomienak's testimony for plaintiff, establishes that the contract for this work was between Jan Pomienak and Klaynberg, not between Regalis and Wonder Works.

With respect to the six invoices at issue for the project at 942 Madison Avenue (WW-11-05-02 - $3,367; WW-11-05-09 - $1,005; WW-11-06-04 - $77.63; WW-11-07-11 - $1,350; and WW-11-07-12 - $700; WW-11-06-06 - $5,060), an AIA application, dated June 6, 2011, and defendant's account ledger showing the full breakdown of the payments and deductions demonstrated that the only outstanding amount was the retainage amount of $5,060. This was consistent with Klaynberg's testimony that defendant had made the payments on the invoices at issue by deducting the amounts it paid to suppliers on plaintiff's behalf, and his claim that the work in WW-11-07-11 and WW-11-07-12 was never approved by defendant, as evidenced by the fact that they were not included in the applications or work orders required for the project.

Finally, with respect to the invoices at issue for the project at 437 5th Avenue (WW- 10-08-27 - $100; WW-10-11-27 - $1,200; WW-11-02-28 - $1,470; WW-10-09-27 -$2,180), the court erred to the extent it awarded plaintiff $2,180, given the physical evidence of a check from defendant showing that plaintiff was paid this amount.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 1, 2021