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Lewin v. Levine - 2017 NY Slip Op 00159, 146 A.D.3d 768, 44 N.Y.S.3d 540 (App. Div. 2nd Dept.)


It is fundamental to the law of damages that one complaining of injury has the burden of proving the extent of the harm suffered, must demonstrate actual damages, and must lay a basis for a reasonable estimate of the extent of the harm.


Plaintiff Harley Lewin and an another entered into a contract with the defendant Harmon Development Corp. (Harmon) to renovate their home located in Chappaqua, New York. Defendant Harmon Levine, as president of Harmon, executed the contract. Defendant Randy Levine is Harmon Levine's wife. Plaintiffs alleged that after they made payments of hundreds of thousands of dollars to Harmon under the contract, they became dissatisfied with the work, terminated Harmon's employment, and hired others to complete the project and remediate what they alleged to be improper and poor work. Plaintiffs then filed suit alleging causes of action sounding in breach of contract, conversion, and negligence. In March 2014, plaintiffs moved for summary judgment on the complaint. In an order dated September 3, 2014, the trial court granted the motion to the extent of awarding plaintiffs summary judgment on the issue of liability on their causes of action. The court noted that plaintiffs sought the sum of $216,399.05 in damages in their complaint, yet in their motion sought the sum of $468,768.78. Thus, the court directed that a trial be conducted on the issue of damages. Subsequently, the trial court entered an order awarding plaintiffs damages in the principal sum of $300,500, which represented the amount of money paid by plaintiffs to Harmon under to the contract. Defendants appealed.


Was the judgment of $300,500 in favor of the plaintiff homeowners as damages justifiable?




The appellate court held that the trial court erred in awarding damages equal to the monies paid by the homeowners to Harmon on the contract because plaintiffs failed to demonstrate what portion of the $300,500 they paid to the defendants was attributed to work that was never done, and/or defective work; the only testimony regarding payments was simply the amount of the payments made under the contract and such proof of payment to Harmon was inadequate to establish the homeowners' damages.

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