Anthony L. Castiglia, Inc. v. City of Lockport 85 A.D.2d 879

Judgment unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: The decision for plaintiff, in its action to recover payment for materials and services provided defendant in the construction of a municipal parking garage, is supported by sufficient proof in the record. Since defendant breached the contract when it unjustifiably prevented completion, plaintiff could recover in quantum, meruit for work done (Paterno & Sons v Town of New Windsor, 43 AD2d 863). In calculating the damages, however, defendant should have been given credit for excavation payments already made, and should not have been required to pay overhead and profit on general payments retained by it under the contract, as the retainage already reflected such amounts. Therefore, judgment is modified to the sum of $283,608.51: (1) 3,600 cubic yards of garbage excavation at $1.01 per cubic yard, plus 5% overhead and 10% profit, for a total of $4,199.58; (2) 7,000 cubic yards of gravel fill, compaction and testing at $5.40 per cubic yard, plus 5% overhead and 10% profit, for a total of $43,659; (3) 883 cubic yards of rock excavation at $62.48 per yard, less credit for $4,710 already paid, for a total of $50,459.84; (4) interest on the total of the preceding three figures from *880December 25, 1975 in the amount of $28,492.65; (5) expenses incurred after December 25, 1975 as calculated by the court, less retainage, plus 5% overhead and 10% profit for a total of $86,147.68; (6) retainage in the amount of $36,850, and (7) interest on the total of the preceding three sums from April 1, 1976 in the amount of $33,799.76. (Appeal from judgment of Niagara Supreme Court, Wolf, J. — breach of construction contract.) Present — Dillon, P. J., Hancock, Jr., Callahan, Doerr and Moule, JJ.