57 A.D.2d 1044 | N.Y. App. Div. | 1977
Judgment unanimously modified in accordance with memorandum, and as modified, affirmed, with costs to respondent. Memorandum: Plaintiff commenced this breach of contract action against defendants Donald Villnave, a building contractor, and the Insurance Company of North America (INA), as surety on a performance bond, seeking damages for the "differential settlement” of its recently constructed restaurant in Fulton, New York. INA, in turn, cross-claimed against Villnave seeking indemnity under the bond and undertaking for any money which it might be required to pay plaintiff on Villnave’s behalf. Following a nonjury trial of these actions, the court granted judgment in plaintiff’s favor in the amount of $97,228.21 on its causes of action against both defendants and further granted INA judgment over against Villnave in the same amount on its cross claim for indemnity. We find no error in the court’s evidentiary rulings at trial. Although the contract admitted as Exhibit No. 3 varied from that included with plaintiff’s bill of particulars in that the former made specific reference to certain plans and specifications, the critical portions of such plans and specifications were quoted in the bill of particulars and there is no indication either of bad faith or prejudice (see Flatow v International Term. Operating Co., 29 AD2d 952; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3041.22; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, C3041:2, p 623). With respect to the pages from the plans and specifications, while the exhibits were not the actual plans used in construction of the building, they were admissible to reconstruct the original plans which neither party was able to produce (Richardson, Evidence [10th ed], §§ 582, 583) and there was a sufficient evidentiary showing to permit a finding that the exhibits were drawings from which defendants’ copy of the plans was made. Insofar as the court’s ruling on the site inspection testimony is concerned, the contract specifically provided that no claim for damages arising out of a breach of the duty to inspect would be allowed and thus the error, if any, in admitting this evidence was not prejudicial and did not give rise to defendants’ liability. Nor was there error in holding Villnave liable for breach of the contract for not placing the foundation footings in at least one foot of virgin soil. The evidence adduced at trial fully supported this finding as well as the finding that this deviation directly caused the resulting settlement of the foundation. With respect to any conflict in such testimony, the issue was one of credibility and there is no basis for disturbing the court’s decision on a question of fact. Furthermore, plaintiff’s action was not barred by the one-year guarantee provision of the contract. That provision applied solely to Villnave’s duty to correct defects through supplemental performance and, absent specific indication in the contract, it cannot be construed as an exclusive remedy (Town