Appeal by plaintiff, on the ground of inadequacy, from a small claims judgment of the District Court, Nassau County (J. Asarch, J.), entered July 17, 2002, awarding her the principal sum of $250.

Judgment unanimously modified by increasing the award to plaintiff to the principal sum of $2,500; as so modified, affirmed without costs.

Plaintiff commenced a small claims action to recover the sum of $2,500 representing her deposit on a contract with defendants. Pursuant to the contract, if the Department of Environmental Conservation (hereinafter "DEC") rejected plaintiff's application for a permit to build a retaining wall, plaintiff was entitled to cancel the contract with defendants who were hired to build said wall. Although defendants prepared multiple detailed drawings in support of plaintiff's application for a permit, each drawing failed to meet the DEC's minimum standards. As a result, the DEC denied plaintiff's application. Thereafter, plaintiff exercised her right to cancel the contract.

Under the circumstances presented, we find that defendants' failure to provide drawings which met the DEC's minimum standards guaranteed that the DEC would reject plaintiff's application for a permit and, thus, constituted a total failure of consideration (see Sciuto v lannucci Food Corp., 219 AD2d 635; Fugelsang v Fugelsang, 131 AD2d 810, 812). Accordingly, notwithstanding the contract provision entitling defendant to retain $1,250 of the deposit, we are of the opinion that substantial justice (UDCA 1807) requires that plaintiff be awarded the full $2,500 of her deposit. Inasmuch as the judgment only permitted plaintiff to recover $250, it should be modified by increasing the award to plaintiff to the principal sum of $2,500.
Decision Date: November 12, 2003