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F.W. Sims, Inc., Appellant, v. T. Moriarty & Son, Inc., et al., Respondents, et al., Defendants

New York Supreme Court, Appellate Division1999-10-21
265 A.D.2d 234696 N.Y.S.2d 453

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Opinion

majority opinion

—Judgment, Supreme Court, New York County (Martin Evans, J.H.O.), entered September 2, 1998, after a nonjury trial, which, to the extent appealed from, limited plaintiffs recovery of delay damages to the principal sum of $4,095, unanimously affirmed, without costs.

We agree with the trial court that “total cost” method of calculating construction delay damages (see, Fehlhaber Corp. & Horn Constr. Co. v State of New York, 69 AD2d 362, 368) was inapplicable under the particular circumstances of this case, and that plaintiff did not otherwise sufficiently prove delay-caused labor costs by non-speculative evidence (see, Mid-State Precast Sys. v Corbetta Constr. Co., 202 AD2d 702, 704, lv dismissed 84 NY2d 923, 86 NY2d 855). We have considered plaintiffs remaining arguments and find them unavailing. Concur — Sullivan, J. P., Nardelli, Tom, Mazzarelli and Friedman, JJ.