SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

608 

CA 10-02494 

PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ. 

 

CNP MECHANICAL, INC., PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

ALLIED BUILDERS, INC., HARTFORD FIRE INSURANCE 

COMPANY, HARTFORD CASUALTY COMPANY, AND 

HARTFORD ACCIDENT AND INDEMNITY COMPANY, 

DEFENDANTS-APPELLANTS. 

(APPEAL NO. 2.) 

 

ERNSTROM & DRESTE, LLP, ROCHESTER (JOHN W. DRESTE OF COUNSEL), FOR

DEFENDANTS-APPELLANTS. 

GATES & ADAMS, P.C., ROCHESTER (ANTHONY J. ADAMS, JR., OF COUNSEL),

FOR PLAINTIFF-RESPONDENT. 

 

Appeals from a judgment of the Supreme Court, Monroe County

(Kenneth R. Fisher, J.), entered August 25, 2010 in a breach of

contract action. The judgment, upon a nonjury trial, awarded

plaintiff the principal sum of $347,682.14 plus interest and costs

against defendants. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by reducing the award of damages for

those items identified as Construction Change Directive (CCD) #1 to

$4,800, CCD #2 to $86,000, CCD #3 to $43,305 and CCD #4 to $55,758,

providing that statutory interest on the reduced awards shall run from

September 7, 2007 for CCD #1, #2, and #4, and from November 16, 2007

for CCD #3, and as modified the judgment is affirmed without costs in

accordance with the following Memorandum: Plaintiff, a plumbing

subcontractor on the construction of a Wal-Mart store, commenced this

action seeking to recover the balance due on its subcontract with

defendant Allied Builders, Inc. (Allied), the general contractor, as

well as the value of extra work it allegedly performed on the project. 

Following a nonjury trial, Supreme Court awarded plaintiff damages in

the principal amount of $347,682.14, with statutory interest from

February 20, 2007, the date on which the action was commenced.

We agree with defendants that, pursuant to the terms of the

subcontract, which incorporates the terms of the contract between

Allied and Wal-Mart, the liability of Allied with respect to the extra

work initiated by Wal-Mart through a Construction Change Directive

(CCD) is limited to the sum approved by Wal-Mart (see generally Sturdy

Concrete Corp. v NAB Constr. Corp., 65 AD2d 262, 268-269, appeal
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CA 10-02494 

dismissed 46 NY2d 938, 940; Joseph Davis, Inc. v Merritt-Chapman &

Scott Corp., 27 AD2d 114, 117-118). The evidence presented at trial

establishes that, with respect to plaintiff’s work, Wal-Mart approved

$4,800 for CCD #1, $86,000 for CCD #2, $43,305 for CCD #3 and $55,758

for CCD #4. We therefore modify the judgment by reducing the award of

damages for those items accordingly. We also agree with defendants

that the court erred in directing that statutory interest on those

items run from the date on which the action was commenced. The

subcontract contains a valid “pay when paid clause,” which required

Allied to pay plaintiff for its CCD work “no later than 15 calendar

days after receipt by [Allied] of corresponding payment from [WalMart] for the Work” (see generally Otis El. Co. v Hunt Constr. Group,

Inc. [appeal No. 2], 52 AD3d 1315, 1316). We therefore modify the

judgment by providing that statutory interest on the sums awarded for

the CCDs shall run from the dates on which the payment for each CCD

was due, rather than from the date of the commencement of the action.

With respect to the remaining categories of extra work, we agree

with plaintiff that Allied waived compliance with the requirement of

the subcontract for a written change order authorizing such extra work

(see Care Sys. v Laramee, 155 AD2d 770, 771; Mel-Stu Constr. Corp. v

Melwood Constr. Corp., 131 AD2d 823, 824). That requirement is “not

applicable where, as here, the conduct of the parties demonstrates an

indisputable mutual departure from the written agreement and the

changes were clearly requested by [Allied] and executed by

[plaintiff]” (Austin v Barber, 227 AD2d 826, 828; see Barsotti’s, Inc.

v Consolidated Edison Co. of N.Y., 254 AD2d 211, 212). In addition,

contrary to defendants’ contentions, we conclude that plaintiff

established that each of the alleged categories of extra work was

outside the scope of the work contemplated by the subcontract, and

that plaintiff presented sufficient evidence establishing the value of

its extra work. Trial testimony provided by a witness with knowledge

of the actual value of such extra work is sufficient and documentary

evidence with respect thereto is not required (see Electronic Servs.

Intl. v Silvers, 284 AD2d 367, 368, lv dismissed 97 NY2d 700, lv

denied 99 NY2d 508; Reed Paving v Glen Ave. Bldrs., 148 AD2d 934,

935). Here, the testimony of plaintiff’s president and its expert was

sufficient to establish that plaintiff was entitled to recover in

quantum meruit for the categories of extra work that were not

encompassed by the CCDs. That testimony established the necessary

elements for recovery in quantum meruit, i.e., plaintiff’s performance

of the extra work in good faith, acceptance of that work by Allied,

plaintiff’s expectation to be compensated for it and the reasonable

value of the work (see Tesser v Allboro Equip. Co., 73 AD3d 1023,

1026; Capital Heat, Inc. v Buchheit, 46 AD3d 1419, 1420-1421).

Finally, we conclude that the court properly dismissed

defendants’ two counterclaims. With respect to the first

counterclaim, defendants failed to present sufficient evidence

establishing that plaintiff breached the subcontract or that plaintiff

owes back charges to Allied for work that was not performed or that

was improperly performed (see generally Mel-Stu Constr. Corp., 131

AD2d at 825; Sturdy Concrete Corp., 65 AD2d at 273). Defendants also

failed to meet their burden of establishing, in support of their
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CA 10-02494 

second counterclaim, that the amounts set forth by plaintiff in its

mechanic’s lien were willfully exaggerated (see Garrison v All Phase

Structure Corp., 33 AD3d 661, 662; George A. Fuller Co. v KensingtonJohnson Corp., 234 AD2d 265, 267).

Entered: May 6, 2011 Patricia L. Morgan

Clerk of the Court