Below are excerpts / summaries of the cases involved. I found these summations / explanations of laws, sometimes called seconds in the Appellate Division Law Library located at: 50 East Avenue, Suite 100, Rochester, NY 14604-2214. However, I was told to reference the actual court cases if I am ever involved in a legal case.
My synopsis, specific to
my individual situation, after examining the following excerpts:
Both contractors, hired
in January 2004, failed to perform substantially in accordance with the terms
of the contract.
Ø
I contracted with Eagle
Construction to install a roof (paid top dollar in fact). It is understood that a roof has to be
watertight. My roof leaks (is not
watertight), thereby the roof they installed has zero value.
Ø
Pecorella's stairway was
condemned. He did not substantially
perform in accordance to NYS Building Codes to the extent that a certificate of
occupancy could not be awarded until defects were corrected.
Neither performed in a
skillful and workmanlike manner; both contractors breached the contracts.
It should be made
clear: I am not required to allow them any additional attempts to effect
repairs. Upon the discovery of the
breach, I treated the contracts as terminated; and I am free from having any
more dealings with them. - Every United
States citizen should be afforded this right.
Even
if someone, at some point, continues to perform their part of the contract by
paying the contractor, their right to recover damages is still reserved.
Please note: This would not hold true if omissions and defects were trivial and innocent and could be compensated for. The test is whether or not there has been substantial compliance with the terms of the contract.
Unfortunately, even New Yorkers may need to be prepared to prove performance was not substantial if they happen to end up in court. See "Right to Cure" and "Corrupt Establishment" pages.
Code of Evidence for the State of New York 1991
By Gov. Mario M. Cuomo
Prepared by the NYS Law Revision Commission
§ 408. Compromise of,
and offers to compromise, disputed claims
Evidence of (a) furnishing or offering or promising to furnish, or (b) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove civil or criminal liability for, invalidity of, or the amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This section does not, however, require the exclusion of evidence existing before the compromise negotiations merely because it is presented in the course of compromise negotiations. This section also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, controverting a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Comment
This section prohibits the admission of evidence dealing with settlement or attempted settlement of a disputed claim when offered either in a civil or criminal case as an admission concerning liability or amount. Inadmissibility is based on several considerations. As one commentator has observed: "First, an offer to compromise or settle ordinarily raises no logical inference of liability. It merely indicates a desire for peace, or the conviction that the prosecution of the claim would result in such expense and annoyance that it is preferable to dispose of the matter by paying a sum of money or doing some other act. Furthermore, even if the offer can be regarded as raising some inference of liability, the most that could be inferred would be that the offeror believed himself or herself liable. Liability, however, is a legal matter and a party is not necessarily liable because the party so believes. Exclusion is also predicated on the social desirability of encouraging and facilitating extra-judicial settlements of disputes, thereby reducing the volume of litigation.
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New York Jurisprudence 2d, 22A NY Jur 2d
On pg. 96 & 97
§ 420 What
Constitutes Breach - Generally
The failure to perform constitutes a breach of contract. Similarly, where a party to a building or construction contract fails to comply with the duty imposed by the terms of the contract, a breach results for which an action may be maintained to recover the damages sustained thereby. A breach also occurs where the contractor inexcusably fails to perform substantially in accordance with the terms of the contract.
On pg. 107
§ 426 Remedies for Breach - Generally
A total breach of a contract renders the party in default
liable in damages. Thus, on the default of a party in the performance of a
contract, the other party may treat the breach as terminating the duty of
performance on his or her part, and sue for damages for the breach.
Alternatively, the injured party may continue to perform, reserving the right
to damages for the breach;
On pg. 452 - 456
§ 344 Compliance
with statutes, ordinances or regulations
Where one contracts to do a piece of work and there is at the time an existing law prescribing the specifications for that kind of work and requiring that all such work be done in accordance with the statute or ordinance, the statute or ordinance becomes a part of the contract, and the one who undertakes to do the work impliedly agrees to do it in such a manner as to meet the requirements of the law. Also, where a contract provides that the work or construction is to comply with the law or regulations, such provision must be fulfilled, and failure in that respect may defeat a recovery. Thus, a contractor, assuming to build in accordance with the building code or public health law of a municipality, must in that regard specifically perform, since neither party may waive the provisions of such laws.
§ 345. Skillful and workmanlike manner
A contractual provision to do all work in a good and workman-like manner is enforceable in New York. An implied promise in a contract to perform the contract in a skillful and workmanlike manner is also recognized in New York. A person undertaking to perform work is charged with a common-law duty to exercise reasonable care and skill in the performance of the work. Indeed, where a person contracts with another to do work at cost plus a percentage, that person has the right to expect the same skill and ability to be applied to his or her work that would be given to a work where the profit was dependent upon the ability to do the work at a cost less than the contract price. This is especially the case where the contractor has refused to allow the other party to have any supervision over the work and required the other party to trust the contractor implicitly.
Failure to comply with an express or implied duty to perform in a skillful and workmanlike manner may defeat recovery.
The failure to comply with an express or implied duty to perform in a skillful and workmanlike manner may entitle the other party to damages resulting from the unskillful and unworkmanlike performance.
Practice Guide: It does not necessarily require expert testimony to raise the issue of unsatisfactory performance.
On pg. 457 - 459
§ 356. Performance according to prescribed standards
When New York courts are called upon to determine the measure of performance with the respect to contractual provisions which specify a particular kind, type, or measure of performance, they often demand rigid compliance with the contractual provisions in order to maintain an action upon the contract. Thus, putting an automobile in "fair condition" does not constitute performance of a contract to put the same " in good running order." Similarly, an owner who contracted for a "first-class walk" is not bound to pay for one that is poor, even though the contractor offers to put on a top dressing which it is shown would not make it first class. Further, where a building contract provides that the contractor must furnish a cellar composed of concrete or asphaltum, and must be a "watertight cellar," a floor constructed seven inches thick under a contract with a subcontractor, upon a method approved by the architect, who was present during the progress of the work, and gave direction in regard to it, but which was not watertight, does not satisfy the terms of the contract.
On pg 470-472
§ 356. Building and construction contracts
With respect to building or construction contracts, the term "substantial performance" is, perhaps necessarily, somewhat indefinite, otherwise than that the builder must have, in good faith, intended to comply with the contract, and should substantially have done so in the sense that the defects are not pervasive, do not constitute a deviation from the general plan contemplated for the work, and are not so essential that the object of the parties in making the contract and its purposes could not, without difficulty, be accomplished by remedying them. If the defects in the construction are substantial, it follows that there is no substantial performance of the contract. However, even though there are defects or omissions in the performance of a building contractor's stipulated obligation, there may be a recovery upon proof of substantial performance where the omissions and defects are trivial and innocent and can be compensated for. The test is whether or not there has been substantial compliance with the terms of the contract.
The doctrine of substantial performance has no application where a building contractor fails to perform home improvements in accordance with local fire and building codes to the extent that a certificate of occupancy cannot be awarded until defects are corrected, and the necessary corrections are so extensive as to require partial reconstruction of the building. Similarly, one who, as contractor; undertakes the construction of a building, cannot claim a substantial performance of the contract where the skimping of work and use of improper materials is done by subcontractors.
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Village, Town and District Courts in New York
Hon. James E. Morris; Hon. Robert G. Bogle; Hon. Thomas F. Liotti; Lorraine R. Miller, Esq.
§11:7 -Interest is
added to claim
Pre-judgment interest should be added to a sum awarded in a breach of contract or property damage case, and is avail- able from the time of the breach or damage to the date of decision. CPLR 5001(b).
Where the small claims litigant is unrepresented by counsel, the court should award this interest even though the litigant does not request it. Judgments bear interest from the date they are entered. CPLR 5003.
Both pre-judgment and post-judgment interest is simple interest, computed at 9% per annum unless otherwise provided by statute or by contract. CPLR 5004; see also Uniform Court Acts § 2102; Long Playing Sessions, Inc. v. Deluxe Laboratories, Inc, 129 A.D.2d 539, 514 N.Y.S,2d 737 (1st Dep't 1987).
§ 11:8 -Costs are
added to the amount claimed
Costs are added to the amount that a successful claimant may recover. In the justice court, costs are the out-of-pocket filing fee advanced to the court to commence the action, plus certain other limited amounts, including subpoena, service fees and other costs, up to a total of $50. UJCA § 1904(a).
In a district court small claims action, costs generally consist of the filing fee, postage and, occasionally, additional service fees where the defendant avoided service and the plaintiff was required to use, for example, the services of a process server.
§ 10:92 --Witness's
oath or affirmation
A witness can be heard only on the basis of an oath or affirmation made in the presence of the clerk or the judge. An oath or affirmation must be administered in a form calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious or ethical beliefs. CPLR 2309(b).
The following is an example of an acceptable oath:
Do you solemnly swear that the testimony you are about to give in the matter of (plaintiff) v (defendant) shall be the truth, so help you God?
§ 10:124 Motions to
set aside verdicts
After a trial, any party may seek to have the verdict or any judgment entered on it set aside. The applicable CPLR provisions are slightly different depending on whether the issue was tried by a jury or a court.
§ 10:126 - Bench
trial verdicts
After a bench trial, the court may, on motion of either party or on its own initiative, set aside its decision and any judgment entered on that verdict,
The court may then make new findings of fact or conclusions of law with or without taking additional testimony, render a new decision or order an entry of new judgment, or order a new trial, CPLR 4404(b).
§ 9:63 -Justice
courts may entertain motions informally
If the parties consent, a justice court may entertain any matter which might be raised by formal motion without a formal motion, at any time prior to the time when the formal motion would be heard. UJCA § 1001.
Judicial Advisory the UJCA recognizes that the amounts in contention in the village and town courts do not justify the expense of formal motion practice. Therefore, if at all possible, such formal practice is, with consent, usually dispensed with.
§ 7:219 -Contents of
motion papers
The motion should be based on sworn allegations of fact made on personal knowledge or on information and belief, if the sources can be specifically identified, CPL 440.30(1).
This requirement is perhaps the most critical aspect of a successful motion. People v. Gonzalez, 158 A.D.2d 615, 551 N.Y.S.2d 586 (2d Dep't 1990).
§ 7:220 -Court may be
required to summarily grant motion
After considering the merits, a court must grant the motion without the requirement of a hearing where all of the following factors exist:
The legal basis for the motion is set forth.
The ground for the motion is based on the existence of facts supported by sworn allegations.
The allegations are either conceded by the prosecutor or are conclusively substantiated by unquestionable documentary proof.
CPL 440.30(3).
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Carmody Wait 2d New York Practice with Forms
8B, Sections 62:1 - 63:245
§ 62:60
Form 2
Notice of Motion to
Set Aside Decision of Court and Grant Judgment or New Trial.
NOTICE OF MOTION
[Title of court and cause]
Index No. -
[Name of assigned judge]
PLEASE TAKE NOTICE, that upon the affidavit of sworn to on [date], the decision of Justice , a justice of this Court, filed on [date], and the judgment entered thereon on [date], and upon all the papers and proceedings heretofore had herein, a motion pursuant to CPLR 4404(b) will be made at a Term, Part (room) of this court to be held at the courthouse thereof, located at [address], [city], New York, on [date], at [time] in the noon of that day, or as soon thereafter as counsel can be heard, for an order setting aside the decision of the court rendered on [date], and the judgment entered thereon on [date], and rendering a new decision in favor of the defendant and directing entry of judgment thereon or, in the alternative, directing a new trial of the above entitled cause of action, upon the ground that [specify grounds], and for such other and further relief as may be just, proper, and equitable.
The above-entitled action is for [briefly state nature of the action, e.g., breach of contract, personal injury].
[If applicable, add: Pursuant to CPLR 2214(b), answering affidavits, if any, are required to be served upon the undersigned at least seven days before the return date of this motion].
Dated:
[Attorney's
signature, name,
address
and telephone number]
To: [Name of attorney for other party]
[Address and telephone number]
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§ 62:60
Form 6
Affidavit in Support of Motion to Set Aside
Decision of Court.
AFFIDAVIT
[Title of court and cause]
STATE OF NEW YORK ss.:
COUNTY OF , being duly sworn, deposes and says:
I. I am the attorney for the defendant in the above entitled action and am fully familiar with all the facts and circumstances heretofore had herein.
2. The above entitled action was brought against the defendant for [specify nature of action].
3. A summons and complaint were served upon the defendant in this action on
[date]. The complaint set forth a cause of action based upon [specify facts upon which cause of action arose].
4. On [date], I duly appeared for the defendant in the action and served an answer upon , attorney for plaintiff. The answer interposed the defense that [specify defense].
5. The action came on to be heard before Justice one of the justices of this court, without a jury, on [date], at a Term, Part of this court.
6. Justice filed [his or her] decision in favor of the plaintiff on [date]. A judgment was entered thereon in favor of the plaintiff on [date]. Copies of the decision and judgment are annexed hereto.
7. [Specify reason why decision and judgment entered thereon should be set aside].
8. Less than fifteen days have elapsed since the decision of the court was rendered in the above entitled action.
9. No appeal from the judgment entered in the action has been filed.
10. No previous application for the relief herein prayed for has been made.
WHEREFORE, deponent respectfully asks for an order granting the relief prayed for in the notice of motion.
[Signature]
[Jurat]
[Attach copies of decision and judgment]
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§ 62:1. Generally
A court has inherent power to direct a new trial because of errors of law or fact, and in furtherance of justice, and may do so on its own motion. This inherent power, which historically was not confined rigidly by well-defined rules, is now codified by the CPLR.
A motion for a new trial
involves the inquiry whether substantial justice has been done; generally, a
new trial should not be ordered except for an error or misconduct which is both
substantial and prejudicial, or when the jury's determination is palpably
incorrect and a substantial injustice would be done if the verdict were
sustained.
§ 62:3. After nonjury trial
After trial of an action not triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision or any judgment entered thereon. In such case, the court may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision, and direct entry of judgment, or it may order a new trial of a cause of action or separable issue. Thus, a court has inherent power to grant a motion to vacate its own judgment for sufficient reason, in furtherance of justice.
Practice Commentary: When the trial is to the court instead of to a jury, procedure is always more flexible. Hence, the additional options are available to the court in the nonjury case as specified above.
It is prerequisite to the grant of a new trial that the movant point out the specific matter, which aggrieves him or her.
Observation: There are many situations in which a judge who has heard a case without a jury may wish to change his or her decision because the judge recognizes some error or some point of law or fact which he or she had previously overlooked. Therefore, all the grounds for post-trial relief in a jury case apply to a nonjury case. Clearly, whether a judge should grant a new trial, or correct the decision, or deny the application in toto, is a matter for judicial discretion. Basically, it would appear that the determining consideration should be the interests of justice.
The fact that the court's remarks at the end of a trial are inconsistent with a subsequent written opinion will not support a motion to set aside the judgment and for a new trial on the ground that the judgment is contrary to the weight of the evidence, since the court is in no way bound by its remarks.
§ 62:17. Generally
A motion for a new trial can be based upon the ground that the granting of such motion would be in the interest of justice. A motion for new trial on the ground that it would be in the interest of justice encompasses errors in rulings on admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence and surprise, or change in the law after submission of the case to the jury, the question the trial judge must decide being whether substantial justice has been done, which involves a determination as to whether it is likely that the verdict has been affected.
§ 62:27. Generally
Although the cases make clear that there is no hard-and-fast rule for the granting of new trials in the interest of justice, where there is clear evidence that the verdict was obtained by false or perjured testimony, the interest of justice requires that a new trial should be ordered. A verdict which rests upon false testimony should not stand.
Similarly, if in
addition to the testimony being perjured, it was inspired and manufactured by
one of the plaintiff's attorneys, who thereby committed a fraud upon the court,
the court will use its power to rectify that wrong by vacating the judgment and
granting a new trial. Any fact which satisfies the court that a judgment has
been obtained by fraud or deceit, or that the party against whom the judgment
was taken was prevented by fraud or deceit from having a fair trial, is in and
of itself sufficient to call for interference by the court.
§ 62:28. Generally
Misconduct of anyone connected with the trial during its progress which might affect the result, whether fraudulent or not, is well-recognized ground for a motion for a new trial. Every motion made upon such ground should be determined upon the facts shown therein.
Generally, to justify the setting aside of a verdict, the misconduct must rise to a higher level than slight irregularity. The misconduct must be of such a nature that injustice has been done, so that in the interest of justice a new trial should be had.
§ 62:57. When and Where Made
A post-trial motion for a new trial by any party must be made before the judge who presided at the trial, within 15 days after decision, verdict, or discharge of the jury.
Although there is an express 15-day limitation on a motion by a party for a new trial, the court may on its own initiative direct a new trial. This has been construed to mean that the power of the court to so act on its own initiative is not limited by the l5-day limitation.
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