PROOF OF LIABILITY BUT NO PROOF OF DAMAGES

ARABIA VEGGACADO, Plaintiff, v. LORDSWORKS WELDING CO. &  ERIC SESSOMS, Defendants. Docket No. CV-013055-18/BX. Civil Court of the City of New York, Bronx County. November 8, 2018:

"`As a general rule, there is implied in every contract for work or services a duty to perform it skillfully, carefully, diligently and in a workmanlike manner `(N.Y. Prac, Contract Law § 11:14) [Jeffries v. Willow Woodworking, Inc., 40 Misc. 3d 1205(A)].

The contract at issue is a Home Improvement Contract which is defined by statute as ". . . an agreement for the performance of home improvement, between a home improvement contractor and an owner, and where the aggregate contract price specified in one or more home improvement contracts, including all labor, services and materials to be furnished by the home improvement contractor, exceeds five hundred dollars (N.Y. Gen. Bus. Law § 770(6))."

Home improvement includes the repairing, remodeling, altering, converting, or modernizing of, or adding to, residential property, and specifically include the construction, replacement or improvement of roofing and flooring, as well as other improvements of the residential property [N.Y. Gen. Bus. Law § 770 (3)].

Plaintiff proved to the court's satisfaction that there were defects in Defendant's work. However, Plaintiff failed to prove a dollar amount of damages. Although Plaintiff testified that she hired someone to finish the work, she never submitted documentation to support that or show the amount incurred.

Plaintiff bore the burden of proving damages resulting from defendant's breach of contract (see Peak v. Northway Travel Trailers, Inc., 27 A.D.3d 927, 928, 811 N.Y.S.2d 798 [2006]; Cotazino v. Basil Dev. Corp., 167 A.D.2d 632, 633, 562 N.Y.S.2d 988 [1990]). In general, the proper measure of damages for breach of a construction contract is the cost to either repair the defective construction or complete the contemplated construction (see Route 7 Mobil v. Machnick Bldrs., 296 A.D.2d 809, 810, 745 N.Y.S.2d 336 [2002]; Thompson v. McCarthy, 289 A.D.2d 663, 664, 733 N.Y.S.2d 791 [2001]; Lyon v. Belosky Constr., 247 A.D.2d 730, 731, 669 N.Y.S.2d 400 [1998]). The damages must be reasonably certain, however, not based upon speculation (see Peak v. Northway Travel Trailers, Inc., 27 A.D.3d at 929, 811 N.Y.S.2d 798).

Similarly while Plaintiff claimed that parts of her property were damaged, no evidence was offered to enable the court to place a dollar value on said damage."