Plymouth Rock Fuel Corp. v. Leucadia, Inc.
| Decision Date | 18 February 1986 |
| Citation | 117 A.D.2d 727,498 N.Y.S.2d 453 |
| Parties | PLYMOUTH ROCK FUEL CORP., Respondent, v. LEUCADIA, INC. f/k/a James Talcott, Inc., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Butler, Fitzgerald & Potter, P.C., New York City (Andrew W. Sidman, of counsel), for appellant.
Alfred A. Rosenberg, Brooklyn (Richard L. Koral, of counsel), for respondent.
Before MOLLEN, P.J., and GIBBONS, THOMPSON and BROWN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for breach of contract, the defendant appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Vaccaro, J.), entered April 2, 1985, which, after a nonjury trial, (1) awarded the plaintiff damages in the principal sum of $19,941.04, and (2) dismissed its counterclaims for failure to make out a prima facie case.
Order and judgment modified, on the facts, by reducing the amount of damages awarded from $19,941.04 to $18,258.93. As so modified, order and judgment affirmed, with costs to the plaintiff, and matter remitted to the Supreme Court, Kings County, for the entry of an appropriate amended order and judgment.
Many of the operative facts herein are contained in a previous determination in this case (see, Plymouth Rock Fuel Corp. v. Leucadia, Inc., 100 A.D.2d 842, 474 N.Y.S.2d 79), whereby this court granted summary judgment to the plaintiff Plymouth Rock Fuel Corp. on the issue of liability, and remitted the case for trial on the issues of damages and the defendant Leucadia's counterclaims. In that prior determination, this court further held, inter alia, that Isaac Silverman, a nonparty to the instant action, had become the defendant's agent for the purpose of ordering fuel oil and related services from the plaintiff. The nonpayment for that fuel oil and related services is the subject of the action at bar.
At the trial, the court admitted into evidence, under the business records exception to the hearsay rule (CPLR 4518), certain delivery tickets and invoices prepared from information contained in the delivery tickets. The information on the delivery tickets as to the amount, location and date of the fuel delivered or other services rendered was supplied by the contract truckers who made the actual deliveries.
The tickets were admitted in evidence based upon the testimony of the plaintiff's president Harry Scharaga, who, while he lacked personal knowledge of the deliveries themselves, nonetheless, was able through his testimony to establish a sufficient foundation for the...
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