Defendant appeals from a judgment of the City Court of New Rochelle, Westchester County (G. Rice, J.), entered on January 15, 2002, following a non-jury trial, awarding plaintiff the principal sum of $12,402.99 and dismissing the counterclaim.

Judgment modified by reducing the award in favor of plaintiff to the sum of $4,963.25; as so modified, affirmed without costs.

A review of the record shows that the trial court's determination that defendant had breached the contract for renovations to plaintiff's apartment constituted a fair interpretation of the evidence (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499). It was undisputed at trial that work listed in the original contract was incomplete after four months, far beyond even the additional time defendant stated would be needed to carry out the alleged change orders. Contrary to defendant's assertions on appeal, the court did not hold that his breach was on the basis of "time of the essence"; rather, he failed to perform, without excuse, within a reasonable time based upon his own estimates of the time required.

The dismissal of defendant's counterclaim, upon which no evidence was presented, was also proper. The record does not support defendant's contention on appeal that he was prevented from presenting such evidence.

However, the damages award to plaintiff was improper in a number of respects. Plaintiff is entitled to an award which represents the sum she had to pay to obtain [*3]complete performance of the contract (36 NY Jur 2d, Damages § 49). Certain items included in the court's award are outside the scope of the contract and therefore may not be recovered (see Pratt Gen. Contrs. v Trappey, 177 AD2d 566). Plaintiff, not defendant, purchased a refrigerator which did not fit with the kitchen cabinets (which were not claimed to be defective), and the $775 award covering this item was improper. The award for "touch-up and painting" was also improper, as painting was beyond the scope of the contract. In accordance with the terms of the contract, we find that plaintiff is entitled to an award of $4,963.25 for the countertop, electrical and plumbing work, and the door pulls.

The court improperly awarded partial damages for plaintiff's mortgage and maintenance costs. Plaintiff is not entitled to any recovery upon this item, as this portion of the award places plaintiff, who had an independent obligation to pay these expenses, in a better position than she would have been upon performance of the contract (see Brushton-Moira Cent. School Dist. v Thomas Assocs., 91 NY2d 256). Plaintiff provided no evidence of any expenses for alternative lodging incurred due to defendant's breach.

Doyle, P.J. and Lifson, J., concur.

Rudolph, J., taking no part.
Decision Date: September 30, 2003
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