Opinion
May 15, 1995
Appeal from the Supreme Court, Suffolk County (Berler, J.).
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v Green Constr. Corp., 100 A.D.2d 509); and it is further,
Ordered that the judgment is reversed, on the law, and the complaint is dismissed; and it is further,
Ordered that Jayeff Construction Corp. is awarded one bill of costs.
The instant litigation arose after Jayeff Construction Corp. (hereinafter Jayeff), a general contractor, terminated a contract with the plaintiff, Mechanical Piping Services (hereinafter Mechanical Piping), with whom it had subcontracted fire sprinkler and plumbing work, on the ground that Mechanical Piping had not timely performed the required services. The trial evidence established that Mechanical Piping wrongfully breached the construction contract and that it had not performed a substantial portion of the work prior to the contract being terminated. Therefore, the Supreme Court erred in awarding Mechanical Piping any damages based upon a theory of quantum meruit compensating Mechanical Piping for the cost of its labor and materials (see, Smith v Brady, 17 N.Y. 173; Knoll v Cape Cod Sea Food Rest., 35 A.D.2d 976, affd 35 N.Y.2d 917; Triple M. Roofing Corp. v Greater Jericho Corp., 43 A.D.2d 594).
In view of our determination, we need not reach the other issues raised on appeal. Miller, J.P., Pizzuto, Joy and Friedmann, JJ., concur.