Wu v. Sabrina Balsky Interior Designs

201 A.D.3d 541

157 N.Y.S.3d 369 (Mem)

June WU, Plaintiff–Appellant–Respondent,

v.SABRINA BALSKY INTERIOR DESIGNS, et al., Defendants–Respondents–Appellants.

15095-15095A

Index No. 113728/08

Case No. 2021–00271, 2021-00272

Supreme Court, Appellate Division, First Department, New York.

ENTERED January 18, 2022

Offit Kurman, P.A., New York (Brendan Marx of counsel), for appellant-respondent.

Manzanet–Daniels, J.P., Gische, Kern, Mazzarelli, Gesmer, JJ.

Judgment, Supreme Court, New York County (Martin Shulman, J.), entered November 30, 2020, after a nonjury trial, awarding damages to defendants on their counterclaims, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered on or about July 20, 2020, which determined defendants’ damages, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

A fair preponderance of evidence supports the court's finding that defendants did not breach the contract for the provision of design and related services to plaintiff in connection with the renovation of her apartment. Plaintiff failed to demonstrate that defendants’ concern that the ordered millwork would be damaged if it were delivered to the apartment before the walls and floor were completed was unfounded; she did not call her contractor as a witness to refute defendants’ contention. Nor does she challenge on appeal the court's finding that, misled by her contractor and manager, she asserted baseless claims against defendants in support of her breach of contract causes of action.

On the first counterclaim, the court correctly concluded that defendants were entitled under the contract to 30% of the amount that the contractors billed plaintiff, less the amounts that plaintiff paid to them. The record supports the court's finding as to the amount that the contractor billed plaintiff for the relevant phase of the project. Any doubt was properly resolved against plaintiff, who breached her contractual obligation to provide defendants with the contractor's contract and invoices. We decline to reach plaintiff's argument that she is entitled to a credit for a portion of the design fee that she paid, as it is raised for the first time on appeal.

The record also supports the award on the second counterclaim. Plaintiff testified that she understood that the merchandise designed and ordered by defendants with her approval was marked up to compensate them for their services in designing, ordering, and overseeing production of the...