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Howard B. Spivak Architect P.C. v. Zilberman

Supreme Court, New York County

April 24, 2013

HOWARD B. SPIVAK ARCHITECT, P.C., Plaintiff,
v.
HENRY ZILBERMAN and SUSAN ZILBERMAN, Defendants. Index No. 118165/2006

Unpublished Opinion

Motion Date: 11/16/12

Dated: April 22, 2013

DEBRA A. JAMES Justice

The following papers, numbered 1 to 3 were read on this motion to set aside the jury verdict.

PAPERS NUMBERED

Notice of Motion/Order to Show Cause - Affidavits - Exhibits-1

Answering Affidavits - Exhibits - 2

Replying Affidavits - Exhibits-3

Upon the foregoing papers,

At the conclusion of the trial on July 21, 2012, the jury unanimously rendered a verdict, finding that (1) the defendant Henry Zilberman and the plaintiff Howard B. Spivak Architect, PC did not agree that the defendant would pay the plaintiff about $200, 000 for architectural services that the plaintiff performed for the defendant under their oral contract (2) the defendant incurred fees for architectural services that plaintiff rendered on his behalf in the amount of $525, 661.46 under the contract, (3) the defendant previously made $204, 4 97.00 in payments to the plaintiff under the contract and (4) that the defendant first owed plaintiff the balance of payments under the contract as of May 2, 2002.

The defendant now moves pursuant to CPLR 4 4 04 to (1) set aside the jury's verdict, in whole or in part, and/or (2) to grant remittitur of the jury verdict, or (3) to direct a judgment in favor of defendant, or (4) to direct a new trial on the grounds that the jury verdict is against the weight of the evidence. The plaintiff opposes the motion.

The court shall grant the defendant's motion only to the extent that the court finds that $525, 661.46, the amount of fees for architectural services that the jury determined that the defendant incurred under the oral contract, is excessive and against the weight of the evidence to the extent of $39, 548.46. The defendant's motion shall be otherwise denied.

The court denied the plaintiff s motion pursuant to CPLR 3025(c) to conform the pleadings to the proof with respect to its claim that it; incurred "out of pocket" expenses in the course of rendering services to the defendant, which the defendant never reimbursed. Except for attorneys' fees, plaintiff's bill of particulars did not amplify the allegations in its complaint that it suffered damages in the form of costs and disbursements. Nor did plaintiff disclose any records of invoices or receipts or checks evidencing payment of such invoices during the discovery phase of the action. Finally, plaintiff's testimony at trial that he paid several invoices, some of which were not identifiable to the contract between the parties, was not supported by any documentary evidence. On that basis, the court agreed with the ...


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