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BREACH OF CONTRACT COUNTERCLAIM AGAINST HOME IMPROVEMENT CONTRACTOR PROPERLY DECIDED IN HOMEOWNERS’ FAVOR; THE CONTRACT DID NOT COMPLY WITH GENERAL BUSINESS LAW 771(1)(b) AND THE CONTRACTOR’S PERFORMANCE WAS DEFICIENT (THIRD DEPT).

The Third Department determined defendants’ breach of contract counterclaim against plaintiff contractor was correctly decided in defendants’ favor after a bench trial and the damages were proper (with the exception of one mistake). The Third Department noted that the home improvement contract did not comply with General Business Law 771 (1) (b):

The record reflects, and plaintiff does not dispute, that he failed to comply with General Business Law § 771 (1) (b), which requires that a home improvement contract include, among other things, provisions as to “[t]he approximate dates, or estimated dates, when the work will begin and be substantially completed, including a statement of any contingencies that would materially change the approximate or estimated completion date.” Inasmuch as the contract failed to include these statutorily required provisions, we find that Supreme Court properly dismissed plaintiff’s breach of contract claim as “a contractor cannot enforce a contract that fails to comply with General Business Law § 771” … . …

The credible testimony at trial established that the work performed by plaintiff was deficient … .

“[T]he proper measure of damages for breach of a construction contract is the cost to either repair the defective construction or complete the contemplated construction” … . Lapenna Contr., Ltd. v Mullen, 2020 NY Slip Op 06183, Third Dept 10-29-20

 

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