Mechanical Piping Services, Inc., Respondent-Appellant, v. Jayeff Construction Corp., Appellant-Respondent, et al., Defendants

Mechanical Piping Services, Inc., Respondent-Appellant, v Jayeff Construction Corp., Appellant-Respondent, et al., Defendants. [626 NYS2d 547] [MAJORITY] In an action to recover damages based upon quantum meruit, Jayeff Construction Corp. appeals from (1) a decision of the Supreme Court, Suffolk County (Berler, J.), dated June 3, 1993, which, after a nonjury trial, found that the plaintiff was entitled to recover $12,500 from it, and (2) a judgment of the same court, entered August 20, 1993, which is in favor of the plaintiff and against it in the principal sum of $12,500, and the plaintiff cross-appeals, on the ground of inadequacy, from the judgment. Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further, Ordered that the judgment is reversed, on the law, and the complaint is dismissed; and it is further, Ordered that Jayeff Construction Corp. is awarded one bill of costs. The instant litigation arose after Jayeff Construction Corp. (hereinafter Jayeff), a general contractor, terminated a contract with the plaintiff, Mechanical Piping Services (hereinafter Mechanical Piping), with whom it had subcontracted fire sprinkler and plumbing work, on the ground that Mechanical Piping had not timely performed the required services. The trial evidence established that Mechanical Piping wrongfully breached the construction contract and that it had not performed a substantial portion of the work prior to the contract being terminated. Therefore, the Supreme Court erred in awarding Mechanical Piping any damages based upon a theory of quantum meruit compensating Mechanical Piping for the cost of its labor and materials (see, Smith v Brady, 17 NY 173; Knoll v Cape Cod Sea Food Rest., 35 AD2d 976, affd 35 NY2d 917; Triple M. Roofing Corp. v Greater Jericho Corp., 43 AD2d 594). In view of our determination, we need not reach the other issues raised on appeal. Miller, J. P., Pizzuto, Joy and Friedmann, JJ., concur.