F.K. Gailey Co., Inc. v. Wahl

• Decision Date: 18 June 1999
• Citation: 692 N.Y.S.2d 563,262 A.D.2d 985
• Parties: F.K. GAILEY COMPANY, INC., Plaintiff-Respondent, v. Wilburt C. WAHL, Jr., Individually and d/b/a French Creek Marina, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 563

692 N.Y.S.2d 563

F.K. GAILEY COMPANY, INC., Plaintiff-Respondent, v. Wilburt C. WAHL, Jr., Individually and d/b/a French Creek Marina, Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

June 18, 1999.

Mark J. Moretti, Rochester, for defendant-appellant.

Timothy J. Fennell, Oswego, for plaintiff-respondent.

PRESENT: DENMAN, P.J., LAWTON, HAYES, PIGOTT, JR., and SCUDDER, JJ.

MEMORANDUM:

Defendant contends that the jury verdict in favor of plaintiff on defendant's counterclaim is against the weight of the evidence. A verdict should not be set aside as against the weight of the evidence unless the evidence so preponderates in favor of the moving party that the jury could not have reached its verdict on any fair interpretation of the evidence (see, Grassi v. Ulrich, 87 N.Y.2d 954, 641 N.Y.S.2d 588, 664 N.E.2d 499; Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163). The jury's finding that plaintiff delivered gasoline in accordance with its warranty is based upon a fair interpretation of the evidence (see, Barresi v. Kapr, 226 A.D.2d 1074, 642 N.Y.S.2d 121, appeal dismissed 88 N.Y.2d 1005, 649 N.Y.S.2d 372, 672 N.E.2d 597).

Contrary to defendant's contention, the computer printout of outstanding amounts due plaintiff was properly admitted as a business record because the data was stored in the regular course of business (see, CPLR 4518[a]; Matter of Thomma, 232 A.D.2d 422, 648 N.Y.S.2d 453; Briar Hill Apts. Co. v. Teperman, 165 A.D.2d 519, 521-522, 568 N.Y.S.2d 50). We reject defendant's contention that the late fee of 2% charged by plaintiff was usurious. The late fee was not a loan or forbearance of money and thus the usury statute does not apply (see, General Obligations Law § 5-501; Waterbury v. City of Oswego, 251 A.D.2d 1060, 674 N.Y.S.2d 530; Matter of City of Binghamton [Ritter], 133 A.D.2d 988, 989, 521 N.Y.S.2d 140, appeal dismissed 70 N.Y.2d 1002, 526 N.Y.S.2d 438, 521 N.E.2d 445). We further reject defendant's contention that the late fee was unconscionable.

We agree with defendant, however, that the judgment must be modified. Supreme Court held that it would calculate damages based on the jury's resolution of the disputed issues and that those damages would be offset by credits due defendant pursuant to the parties' stipulation. The court did not calculate damages, however, and the judgment filed by plaintiff based on its own calculation of damages did not...