Lyon v. Belosky Constructions, Inc.

669 N.Y.S.2d 400 (1998)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

P and D entered into a contract for the construction of a custom home. Ps retained Vieselmeyer (D), a professional engineer, to, prepare construction documents and conduct periodic inspections to ensure that the home was constructed in conformity with the drawings. In April 1994, Ps became aware of a problem with a dormer over the main entrance of the home. The dormer was removed and rebuilt. Ps found the rebuilt dormer unsatisfactory and directed D to remove it. The home was subsequently completed with the exception of the interior and exterior of the main entrance. Ps then learned that the roof had been centered over the library rather than the living room as represented in the drawings resulting in a change in the roof proportions and enlargement of the overhang over the main entrance. In addition, the entrance pillars could not be used in the manner depicted in the drawings. Ps sued for breach of contract. Ds raised the defense of economic waste claiming that damages, if any, should be based upon the diminution in value of the structure rather than the value of replacement. The court found that Ps were entitled to damages in an amount necessary to replace the roof so as to bring it in conformity with the drawings. It awarded Ps judgment in the sum of $73,182.66, the agreed-upon cost of replacement including costs and interest. Ds appeal.