Plainview S. & S. Concrete Co., Inc. v. NVNG Development Corp.

• Decision Date: 19 June 1989
• Citation: Plainview S. & S. Concrete Co., Inc. v. NVNG Development Corp., 542 N.Y.S.2d 714, 151 A.D.2d 654 (N.Y. App. Div. 1989)
• Parties: PLAINVIEW S. & S. CONCRETE CO., INC., Respondent-Appellant, v. NVNG DEVELOPMENT CORP., Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 714

542 N.Y.S.2d 714

151 A.D.2d 654

PLAINVIEW S. & S. CONCRETE CO., INC., Respondent-Appellant, v. NVNG DEVELOPMENT CORP., Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

June 19, 1989.

Franklin Rand Weiss, P.C., Great Neck City (Ira M. Bierman, of counsel), for appellant-respondent.

Pacifico, DiGregorio & Pacifico, Mineola (Charles L. Pacifico, of counsel), for respondent-appellant.

Before BRACKEN, J.P., and KUNZEMAN, EIBER and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Queens County (Goldstein, J.H.O.), entered November 9, 1987, which, after a nonjury trial, is in favor of the plaintiff and against it in the principal sum of $36,784.50, and the plaintiff cross appeals from so much of the same judgment as denied its claim to recover damages for loss of profits.

ORDERED that the cross appeal is dismissed as abandoned, without costs or disbursements; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

This action arises in connection with a contract for the performance of certain concrete work by the plaintiff during the construction of a building owned by the defendant. In viewing the evidence in the light favorable to sustain the trial court's judgment and giving due deference to its findings on credibility (see, McKnight v. Murabito, 139 A.D.2d 571, 572, 527 N.Y.S.2d 71), we find that the court's determination was supported by the testimony of both parties' witnesses. The plaintiff left the job site because the preparatory work, for which the defendant was responsible, had not yet been completed, thereby causing the plaintiff to be unable to continue working at that time. Under these circumstances, the defendant cannot successfully assert that the plaintiff, in...