Opinion
2004-01045.
June 6, 2005.
In an action to recover damages for breach of contract, the defendants appeal from a judgment of the Supreme Court, Putnam County (Sweeney, J., on judgment; Hickman, J., at trial), entered January 22, 2004, which, upon a jury verdict, is in favor of the plaintiff and against them in the principal sum of $63,144.48.
Brown Fox, P.C., New York, N.Y. (Ryan J. Whalen of counsel), for appellants.
Richard I. Goldsand, Brewster, N.Y., for respondent.
Before: Florio, J.P., Schmidt, Adams and Mastro, JJ., concur.
Ordered that the judgment is reversed, on the law, and a new trial is granted, with costs to abide the event.
If a jury charge is "ambiguous, inconsistent, erroneous, confusing, one-sided, incomplete or overly technical a new trial will be ordered if prejudice has resulted to any party" ( Smith v. Midwood Realty Assoc., 289 AD2d 391, 392 [internal quotation marks omitted]). "[A] primary tenet of the doctrine of substantial performance is that the extent of recovery must be limited to reflect an adjustment for those items which were not duly performed" ( Pilgrim Homes Garages v. Fiore, 75 AD2d 846, 847; see Teramo Co. v. O'Brien-Sheipe Funeral Home, 283 AD2d 635, 637). The charge given on this issue was erroneous, incomplete, and ambiguous. Consequently, since the defendants were prejudiced by the charge, a new trial is required ( see Witherspoon v. Columbia Univ., 7 AD3d 702, 703; Smith v. Midwood Realty Assoc., supra; Carefree Bldg. Prods. v. Belina, 169 AD2d 956, 957-958).
The defendants' remaining contentions are without merit.