Appeal by plaintiffs from so much of a small claims judgment of the Justice Court, Town of Clarkstown, Rockland County (C. Johns, J.), entered June 7, 2002, as, after trial, dismissed their claim.

Judgment unanimously modified by awarding plaintiffs the principal sum of $2,750 and, as so modified, affirmed without costs.

This small claims action was commenced by plaintiffs to recover damages arising out of defendant's failure to complete construction on an addition to their home, according to the terms of their contract. Defendant counterclaimed for damages for additional construction work he performed which was unpaid. The court below found that while defendant did not complete the work contracted for and was nevertheless paid in full under the contract, defendant also did a substantial amount of extra work on the job for which he was not compensated. It further found that although plaintiffs submitted paid receipts for work required to complete the project, such expenditures were not in excess of the amount due defendant for the extra work which he had performed. Accordingly, it dismissed both plaintiffs' claim and defendant's counterclaim.

A review of the record on appeal indicates that substantial justice between the parties was not done in accordance with the rules and principles of substantive law (see UJCA 1804). Plaintiffs did not prove that they paid the total contract amount and , in fact, acknowledged that a balance of $750 remained unpaid. They did, however, demonstrate that defendant failed to complete the work contracted for. They also submitted an "itemized bill or invoice, receipted or marked paid" as prima facie evidence of the reasonable value of the expenditures they made in order to have the remaining work completed (see UJCA 1804). Defendant, on the other hand, failed to submit any proof as to the extent and value of the extra work which he allegedly performed and for which he had not been reimbursed. Although the contract provided that any alterations or deviations from the original contract which involved extra costs (including hidden [*2]damages that were uncovered during the course of the job and additional work required by local inspectors), required a written change order and that those costs would become an extra charge over the original estimate, the parties by their conduct demonstrated an intent to waive the written authorization provision (see e.g. Tridee Assoc. v New York City School Constr. Auth., 292 AD2d 444 [20021).

While the counterclaim was appropriately dismissed, the court below erred in dismissing the plaintiffs' claim, and the judgment is, therefore, modified accordingly, to reflect the $3,500 which plaintiffs were required to pay to another construction company in order to complete the job which they had originally contracted for, less the $750 which remained unpaid under the original contract.
Decision Date: December 17, 2003