17 A.D.3d 148
N.Y. App. Div.
2005

POWER COOLING INC., Appellant, v THE CHURCHILL SCHOOL AND CENTER et al., Defendants, and SIGNATURE CONSTRUCTION GROUP, INC., Respondent.

Supreme Court, Appellate Division, First Department, New York

[792 NYS2d 452]

Judgment, Supreme Court, New York County (Charles Edward Ramos, J.), entered March 25, 2004, after a nonjury trial, awarding plaintiff the principal sum of $28,825, unanimously affirmed, without costs.

The trial court’s fact-finding was based on a fair interpretation of the evidence and will not be disturbed (see Chase Manhattan Bank v Each Individual Underwriter Bound to Lloyd’s Policy No. 790/004A89005, 287 AD2d 303 [2001]). Since the letter of intent, dated February 5, 2001, did not contain all the material terms of the contract, including time, manner of performance and payment schedule (see e.g. Allied Sheet Metal Works v Kerby Saunders, Inc., 206 AD2d 166 [1994]), and the parties did not execute the AIA contract, there was no binding agreement such as would sustain a claim for breach of contract (see Metropolitan Steel Indus. v Citnalta Constr. Corp., 302 AD2d 233 [2003]). Under the circumstances, damages in quantum meruit were appropriate (see Frank v Feiss, 266 AD2d 825 [1999]). There was no entitlement to damages for alleged unpaid claims on other projects because plaintiff’s documentation did not meet the criteria for business records (CPLR 4518), and its witnesses had no personal knowledge that the alleged work had been done. Concur—Mazzarelli, J.P., Saxe, Ellerin, Gonzalez and Catterson, JJ.