Novair Mech. Corp. v. Universal Mgmt. & Contracting Corp.
Decision Date | 22 February 2011 |
Citation | 81 A.D.3d 909,917 N.Y.S.2d 876 |
Court | New York Supreme Court — Appellate Division |
Parties | NOVAIR MECHANICAL CORP., respondent, v. UNIVERSAL MANAGEMENT & CONTRACTING CORP., appellant. |
Joseph P. Dineen, Garden City, N.Y., for appellant.
Shanker Law Group, Mineola, N.Y. (Deborah A. Johnson of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals from (1) an order of the Supreme Court, Queens County (Kitzes, J.), entered October 7, 2009, which denied its motion for summary judgment dismissing the complaint, and (2) a judgment of the same court entered March 5, 2010, which, after a nonjury trial, is in favor of the plaintiff and against it in the principal sum of $18,712.40.
ORDERED that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review on the appeal from the judgment ( see CPLR 5501[a][1] ).
"Upon review of a determination rendered after a nonjury trial, this Court's authority is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account in a close case the fact that thetrial judge had the advantage of seeing the witnesses" ( West Orange Mgt., Inc. v. Alaimo, 57 A.D.3d 530, 530, 868 N.Y.S.2d 292; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809). "In order to recover for substantial performance, the plaintiff must establish that its failure to perform was inadvertent or unintentional and that the defects were insubstantial" ( Sear-Brown Assoc. v. Blackwatch Dev. Corp., 112 A.D.2d 765, 765, 492 N.Y.S.2d 266; see West Orange Mgt., Inc. v. Alaimo, 57 A.D.3d 530, 868 N.Y.S.2d 292; Jerry B. Wilson Roofing & Painting v Jobco-E. R. Kelly Assoc., 128 A.D.2d 953, 954, 513 N.Y.S.2d 263). Here, the defects in the plaintiff's work were substantial and, thus, the Supreme Court should not have concluded that the plaintiff substantially performed the contracted work ( see Jerry B. Wilson Roofing & Painting v Jobco-E. R. Kelly Assoc., 128 A.D.2d at 954, 513 N.Y.S.2d 263; Sear-Brown Assoc. v. Blackwatch Dev. Corp., 112 A.D.2d at 765, 492 N.Y.S.2d 266; Anderson Clayton & Co. v. Alanthus Corp., 91 A.D.2d 985, 457 N.Y.S.2d 578; Pilgrim Homes & Garages v. Fiore, 75 A.D.2d 846, 427 N.Y.S.2d 851; Witt v. Gilmour, 172 App.Div. 110, 115, 158 N.Y.S. 41; Fuchs v. Saladino, 133 App.Div. 710, 715, 118 N.Y.S. 172).
The plaintiff's contention that it was excused from further performance because of the defendant's nonpayment is without merit...
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