Majority
p. 378Maloney Carpentry, Inc., Respondent, v George Budnick et al., Appellants. [795 NYS2d 911]
In an action to recover damages for breach of contract, the defendants appeal from a judgment of the Supreme Court, Putnam County (Sweeney, J., on judgment; Hickman, J., at trial), entered January 22, 2004, which, upon a jury verdict, is in favor of the plaintiff and against them in the principal sum of $63,144.48.
Ordered that the judgment is reversed, on the law, and a new trial is granted, with costs to abide the event.
If a jury charge is “ambiguous, inconsistent, erroneous, confusing, one-sided, incomplete or overly technical a new trial
p. 379
will be ordered if prejudice has resulted to any party” (Smith v Midwood Realty Assoc., 289 AD2d 391 , 392 [2001] [internal quotation marks omitted]). “[A] primary tenet of the doctrine of substantial performance is that the extent of recovery must be limited to reflect an adjustment for those items which were not duly performed” (Pilgrim Homes & Garages v Fiore, 75 AD2d 846 , 847 [1980]; see Teramo & Co. v O’Brien-Sheipe Funeral Home, 283 AD2d 635 , 637 [2001]). The charge given on this issue was erroneous, incomplete, and ambiguous. Consequently, since the defendants were prejudiced by the charge, a new trial is required (see Witherspoon v Columbia Univ., 7 AD3d 702 , 703 [2004]; Smith v Midwood Realty Assoc., supra; Carefree Bldg. Prods, v Belina, 169 AD2d 956 , 957-958 [1991]).
The defendants’ remaining contentions are without merit. Florio, J.E, Schmidt, Adams and Mastro, JJ., concur.
Cases cited
- Smith v. Midwood Realty Associates 289 AD2d 391 at 392 p. 379
- Pilgrim Homes & Garages, Inc. v. Fiore 75 AD2d 846 at 847 p. 379
- Teramo & Co. v. O'Brien-Sheipe Funeral Home, Inc. 283 AD2d 635 at 637 p. 379
- Witherspoon v. Columbia University 7 AD3d 702 at 703 p. 379
- Carefree Building Products, Inc. v. Belina 169 AD2d 956 at 957-958 p. 379