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A & F Fire Protection Co., Inc. v Feit
2015 NY Slip Op 50690(U) [47 Misc 3d 144(A)]
Decided on May 1, 2015
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 1, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : MARANO, P.J., IANNACCI and GARGUILO, JJ.
2014-208 N C

A & F Fire Protection Co., Inc., Respondent,

against

Bruce Feit and BTU DESIGN CORP., Appellants.


Appeal from a judgment of the District Court of Nassau County, First District (Eric Bjorneby, J.), entered November 25, 2013. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,400 as against both defendants.

ORDERED that the judgment is modified by vacating so much of the judgment as is against defendant Bruce Feit and by providing that so much of the action as is against him is dismissed; as so modified, the judgment is affirmed, without costs.

Plaintiff commenced this commercial claims action to recover the principal sum of $2,400. At a nonjury trial, Kenneth Fulep, plaintiff's principal, testified that plaintiff is


a fire sprinkler contractor, and had been hired by the New York City School Construction Authority (SCA) to install a fire sprinkler system at a Brooklyn public school, and to test it in accordance with SCA requirements. In connection with that contract, plaintiff entered into an agreement to pay defendant BTU Design Corp. (BTU) for the purchase, installation and testing of a fire pump. Defendant Bruce Feit was the principal of BTU. The substance of the parties' agreement was undisputed; nor did defendants challenge plaintiff's claim that plaintiff had paid BTU in full.

The parties agreed that compliance was required with SCA procedures, which mandated that, "The Contractor must communicate in writing to the Architect or Engineer of Record and the Authority the testing method to be used." However, after the fire pump had been installed, the parties, using email and telephone, discussed, and failed to agree upon, the procedure that was to be followed for testing the fire pump, or for creating the writing setting forth the testing method to be used. Additionally, BTU conditioned its performance of testing on plaintiff's providing a letter which would limit BTU's responsibilities with respect to the testing of the pump. Plaintiff then engaged a different contractor, LPI Controls, Inc. (LPI), to test the fire pump instead. Fulep testified, and defendants did not dispute, that plaintiff had paid LPI $2,400 for the testing. Following the trial, a judgment was entered awarding plaintiff the principal sum of $2,400 against both defendants.

In a commercial claims action, our review is limited to a determination of whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UDCA 1807-A [a]; see UDCA 1804-A; Ross v Friedman,


269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial [*2]court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). The deference normally accorded to the credibility determinations of a trial court applies with greater force in the Commercial Claims Part of the court, given the limited scope of review (see Williams v Roper, 269 AD2d at 126).

BTU's demand for extracontractual terms as a condition for testing the fire pump constituted a repudiation of one of the terms of the agreement between plaintiff and BTU (see Joseph P. Carrara & Sons, Inc. v A.R. Mack Constr. Co., Inc., 89 AD3d 1190, 1191 [2011]). Consequently, plaintiff was entitled to damages which would place it in as good a position as it would have been in had BTU completed performance under its agreement with plaintiff (see Brushton-Moira Cent. School Dist. v Thomas Assoc., 91 NY2d 256, 261 [1998]; see also Restatement [Second] of Contracts §§ 344, 347, Comment a). Plaintiff's action in hiring LPI to complete performance of the agreement by testing the fire pump was a natural and probable consequence of BTU's repudiation of its agreement with plaintiff (see Biotronik A.G. v Conor Medsystems Ireland, Ltd., 22 NY3d 799 [2014]). Defendants failed to demonstrate that the testing LPI had performed for $2,400 exceeded the testing that had been contemplated under plaintiff's agreement with BTU.

We thus conclude that the District Court's determination with respect to defendant BTU rendered substantial justice between plaintiff and BTU (see UDCA 1804-A, 1807-A [a]). However, it was unrefuted that plaintiff had contracted only with the corporate defendant for the services in issue, and no basis was shown for imputing liability to the individual defendant, Feit. We therefore vacate so much of the judgment as is against defendant Bruce Feit and dismiss so much of the action as is against him, since this portion of the judgment failed to render substantial justice (see UDCA 1804-A, 1807-A [a]).

We note that we do not consider materials annexed to defendants' appellate brief which are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the judgment is modified by vacating so much of the judgment as is against defendant Bruce Feit and by providing that so much of the action as is against him is dismissed.

Marano, P.J., Iannacci and Garguilo, JJ., concur.

Decision Date: May 01, 2015