Appeal from a judgment of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered September 12, 2005. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,297.06 and dismissed defendant's counterclaim.

Judgment modified by reducing the award in favor of plaintiff to the principal sum of $1,677.06; as so modified, affirmed without costs.

In the instant breach of contract action, plaintiff, an alarm installation and monitoring company, sought to recover defendant's past due balance, the remaining balance owed under the contract, the cost of the alarm system equipment and attorney's fees as set forth in the contract. In our view, the court below properly determined that defendant breached the contract in failing to make the payments provided for in the contract, entitling plaintiff to the balance due thereunder as well as attorney's fees in accordance with the contract. However, upon our review of the contract, we are of the opinion that the lower court improperly included in its award in favor of plaintiff the cost of the alarm system equipment. While the contract provided that the alarm system equipment would remain the property of plaintiff, paragraph 10, entitled "Removal of Equipment," specifically provided that "Upon the expiration or termination of this Agreement for any reason, we [plaintiff herein] shall be able, with or without notice to you [defendant herein], to remove, disable or abandon all or any portion of the Alarm System without any obligation to repair or redecorate. Any removal, disabling or abandonment shall not constitute a waiver of any rights we may have to collect any charges which have been accrued or may accrue under this Agreement." Plaintiff failed to establish at trial that he sought to remove the alarm system equipment from defendant's premises and that defendant prevented plaintiff from doing so. Therefore, upon the record presented, plaintiff has failed to demonstrate that he is entitled to recover the value of the alarm system equipment. [*2]

We have reviewed defendant's remaining contentions and find them to be without merit. Accordingly, the judgment should be modified by reducing the amount
awarded to plaintiff to the principal sum of $1,677.06, representing the balance owed under the contract as well as $500 in attorney's fees, as determined by the court below. Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: February 7, 2007