Opinion
2007-935 S C.
Decided July 10, 2008.
Appeal, on the ground of inadequacy, from a judgment of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered December 22, 2006. The judgment, after a nonjury trial, awarded plaintiff the net sum of only $2,300, representing an award in favor of plaintiff on its cause of action in the sum of $4,000 and an award in favor of defendants on their counterclaim in the sum of $1,700.
Judgment modified by providing that the counterclaim is dismissed and the award in favor of plaintiff is increased to the principal sum of $4,000, and matter remanded to the court below for the calculation of interest in accordance with the decision herein and for the entry of an appropriate amended judgment; as so modified, affirmed without costs.
PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
In this commercial claims action, plaintiff sought to recover the unpaid balance due for the construction of the foundation and general concrete work which it completed on defendants' home. Defendants counterclaimed for the cost to repair the cracks in the basement walls allegedly caused as a result of plaintiff's substandard workmanship. The court awarded plaintiff the net sum of $2,300, representing an award to plaintiff of the sum of $4,000 and an award to defendants on their counterclaim in the sum of $1,700. Plaintiff appeals on the ground of inadequacy.
At trial, defendants' expert, a licensed engineer, testified that it was his opinion that the cracks in the basement walls were caused by improper backfill or compaction. Since the evidence at trial established that the clearing, excavating, backfilling and final machine grading work at defendants' premises were performed by a company other than plaintiff, defendants failed to demonstrate that plaintiff was responsible for the cracks in the basement walls. Accordingly, defendants failed to establish their counterclaim and defendants should not have been awarded the sum of $1,700 thereon. Rather, substantial justice (UDCA 1807-A) requires that the counterclaim be dismissed.
Furthermore, plaintiff was entitled to prejudgment interest on its accrued claim ( see CPLR 5001 [a]). Although the invoices sent to defendants after completion of the work provided that an interest rate of 1.5% per month would be charged for all balances more than 30 days overdue, plaintiff is only entitled to recover prejudgment interest at the statutory rate of nine per centum per annum (CPLR 5001, 5004) since plaintiff did not establish that said finance charge was a part of the initial contract between the parties or ever agreed to by defendants. Upon a review of the record, we find that the earliest ascertainable date from which interest started to accrue was July 24, 2003, with respect to the $2,400 balance, and June 19, 2004, with respect to the $1,600 balance.
Contrary to plaintiff's contention, it was not entitled to recover costs in the instant action since awards of costs in commercial claims actions are limited to prevailing claimants whose actions were transferred to another part of the court ( see UDCA 1806-A).
Accordingly, the judgment is modified by providing that the counterclaim is dismissed and the award in favor of plaintiff is increased to the principal sum of $4,000, and the matter is remanded to the court below for the calculation of interest in accordance with this decision and for the entry of an appropriate amended judgment.
Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.