        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

520
CA 12-01882
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND WHALEN, JJ.


S.J. KULA, INC., PLAINTIFF-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

KEVIN CARRIER AND SHELLY CARRIER, DOING
BUSINESS AS CARRIER SALVAGE AND RECYCLING, LLC,
DEFENDANTS-APPELLANTS.


HALL AND KARZ, CANANDAIGUA (PETER ROLPH OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

MERKEL AND MERKEL, ROCHESTER (DAVID A. MERKEL OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Yates County (W.
Patrick Falvey, A.J.), entered December 15, 2011. The judgment
awarded plaintiff money damages after a nonjury trial.

     It is hereby ORDERED that the judgment   so appealed from is
unanimously modified on the law by vacating   the award of damages and
interest and substituting therefor an award   of $8,290 with interest at
a rate of 9% per annum commencing August 2,   2008 and as modified the
judgment is affirmed without costs.

     Memorandum: Plaintiff commenced this action for, inter alia,
quantum meruit, alleging that defendants owed a balance of $31,720
based on their failure to pay plaintiff for the construction of a
horseshoe driveway at defendants’ place of business. Defendant Kevin
Carrier (Kevin) asserted a counterclaim seeking damages for
plaintiff’s repossession of a “lowboy” semitrailer, which plaintiff
had agreed to sell to Kevin, and for which plaintiff had accepted
$7,000 as partial payment. After a nonjury trial, Supreme Court
granted plaintiff judgment on its cause of action for quantum meruit
in the amount of $31,720, less an offset of $7,255 for damages awarded
to Kevin against plaintiff on his counterclaim, for total damages in
the amount of $24,465. The court also awarded plaintiff statutory
interest of $7,339.50 on those damages from the period of August 2,
2008, i.e., the date of plaintiff’s invoice for work on the driveway,
and thus entered judgment against defendants in the amount of
$31,804.50.

     We reject defendants’ contention that the amended complaint
failed to place defendants on notice of plaintiff’s claim for damages
on the theory of quantum meruit (see Clark v Torian, 214 AD2d 938,
                                 -2-                           520
                                                         CA 12-01882

938; see also CPLR 3013, 3026). We also conclude that there is no
merit to defendants’ contention that plaintiff failed to prove at
trial the “good faith” element of quantum meruit (see generally Pulver
Roofing Co., Inc. v SBLM Architects, P.C., 65 AD3d 826, 827).

     We agree with defendants, however, that there is no fair
interpretation of the evidence supporting the court’s conclusion that
plaintiff is entitled to $24,465 in damages (cf. Matter of City of
Syracuse Indus. Dev. Agency [Alterm, Inc.], 20 AD3d 168, 170).
Plaintiff advanced a claim for approximately $30,000 based largely on
the self-serving testimony of plaintiff’s representative as to the
extent and value of the project. Although plaintiff submitted in
evidence an invoice to defendants in support of its claim, we note
that the invoice contains no meaningful detail; incorrectly totals the
amount due for the work, resulting in a mathematical error, which the
court appears not to have acknowledged; and was not prepared
contemporaneously with the completion of the project, but was tendered
to defendants approximately seven months after the work was finished.
Moreover, plaintiff failed to submit any evidence—such as worksheets,
receipts, or other documentation—supporting the charges listed in the
invoice.

     The testimony of plaintiff’s representative with respect to the
extent and value of the project was also contradicted by defendants’
witnesses at trial. One of plaintiff’s former employees who testified
on behalf of defendants undermined significant portions of the
testimony of plaintiff’s representative with respect to the extent of
the project. With respect to value, that employee, drawing on his
experience in gravel driveway installation, also estimated the price
of the project at approximately $8,000. A former employee of Kevin,
who had estimated “over a thousand” similar gravel driveway projects,
likewise testified that a reasonable price for plaintiff’s services in
constructing defendants’ driveway would be between $6,500 and $8,000.
In addition, an excavation and driveway installation expert who
testified for defendants estimated that the subject work should have
cost approximately $8,290. We reject plaintiff’s contention that the
expert’s estimate lacked a proper foundation because it was based on
the unsupported factual assumption that there was a preexisting
driveway. To the contrary, two other witnesses testified that there
had been a preexisting driveway, and thus we conclude that there was a
proper factual foundation for the expert’s estimate (see Latour v
Hayner Hoyt Corp., 13 AD3d 1147, 1148).

     Plaintiff is correct that “[p]roof of damages may be based upon
oral testimony alone, so long as the witness has knowledge of the
actual costs” (Reed Paving v Glen Ave. Bldrs., 148 AD2d 934, 935; see
CNP Mech., Inc. v Allied Bldrs., Inc., 84 AD3d 1748, 1749), and that
the customary means of calculating damages on a quantum meruit basis
in a construction case is actual job costs plus profit minus amount
paid (see TY Elec. Corp. v DelMonte, 101 AD3d 1626, 1626).
Nevertheless, we cannot conclude that the court’s award of $31,720 is
supported by a fair interpretation of the evidence (cf. Matter of City
of Syracuse Indus. Dev. Agency [Alterm, Inc.], 20 AD3d at 170; see
generally Home Insulation & Supply, Inc. v Buchheit, 59 AD3d 1078,
                                 -3-                           520
                                                         CA 12-01882

1079; Vineyard Oil & Gas Co. v Standard Energy Corp., 45 AD3d 1291,
1292). That award was based on plaintiff’s self-serving testimony and
invoice, while defendants presented the testimony and estimates of
three nonparty witnesses establishing that plaintiff’s work was not
worth more than $8,290. Under the unique circumstances of this case,
i.e., the seven-month lapse between the time that plaintiff completed
the project and the time that he drafted and tendered the invoice to
defendants, we conclude that the proper remedy is to adopt the highest
of the project estimates from defendants’ trial witnesses as the basis
for the award of damages (see generally Iacampo v State of New York,
267 AD2d 963, 964). Consequently, we modify the judgment by vacating
the award of damages and interest and substituting therefor an award
of $8,290, with interest at a rate of 9% per annum commencing August
2, 2008.




Entered:   June 14, 2013                       Frances E. Cafarell
                                               Clerk of the Court
