Opinion
July 1, 1985
Appeal from the Supreme Court, Orange County (Ritter, J.).
Judgment affirmed insofar as appealed from, with costs.
After reviewing the record, we find that there was ample evidence to support the findings of fact made by the trial court. The testimony of defendant's expert witness, to whom the court apparently attributed a high degree of credibility, was internally consistent and, contrary to the plaintiffs' contention, certainly cannot be held to be incredible as a matter of law.
Neither do we find that the court erroneously concluded that plaintiffs were responsible for the drafting of the roof design. It was not disputed that the roof was constructed according to the plans and specifications provided by the draftsman. We find the draftsman was hired by plaintiffs and, therefore, that the defendants cannot be held responsible for the damages which ensued as a result of the defective design ( see, MacKnight Flintic Stone Co. v. Mayor of City of N.Y., 160 N.Y. 72).
Furthermore, under the particular circumstances of this case, we cannot say that the trial court applied the wrong measure of damages by awarding plaintiffs the difference in value between the contract materials and the substituted materials actually utilized. The variance between the two was not so significant as to render the floors partially unusable or unsafe ( see, Bellizzi v. Huntley Estates, 3 N.Y.2d 112). There was ample testimony, apparently credited by the trial court, that the small difference in the thickness of the floors created by the substitution, was not noticeable. We find that under the facts here presented, it would be unfair and out of proportion to the good to be attained, to permit plaintiffs to recover the replacement value of the floor, rather than the difference of value of the materials used ( see, Jacob Youngs v. Kent, 230 N.Y. 239).
The other contentions raised by plaintiffs have been examined and have been found to be without merit, for the reasons stated in the memorandum decision of Justice Ritter. Thompson, J.P., Weinstein, Brown and Kunzeman, JJ., concur.