Allied Industrial Manufacturing & Supply Corp. v. D. Fortunato, Inc.

Appellate Division of the Supreme Court of New York

Allied Industrial Manufacturing & Supply Corp. v. D. Fortunato, Inc.

22 A.D.2d 905, 255 N.Y.S.2d 493, 1964 N.Y. App. Div. LEXIS 2458

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 21, 1964

StatusPublished

This text of 22 A.D.2d 905 (Allied Industrial Manufacturing & Supply Corp. v. D. Fortunato, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Allied Industrial Manufacturing & Supply Corp. v. D. Fortunato, Inc., 22 A.D.2d 905, 255 N.Y.S.2d 493, 1964 N.Y. App. Div. LEXIS 2458 (N.Y. Ct. App. 1964).

Pincite

Opinion

In an action to enforce a payment bond issued to the defendant contractor, D. Fortunato, Inc., by the defendant American Surety Company, to secure payment for labor performed and material furnished by subcontractors, the plaintiff, one of the subcontractors, appeals from an order of the Supreme Court, Westchester County, dated April 15,1964, which denied its motion: (a) to dismiss the defense of the Statute of Frauds pleaded by said defendants; and (b) to strike out item “5” from said defendants’ demand for a bill of particulars, requiring plaintiff to set forth in detail “ each and every item of work performed by [it] and the cost thereof.” Order reversed on the law, with $10 costs and disbursements; plaintiff’s motion to dismiss the said defehse and to strike out said item “5” of the demand for a bill of particulars is granted; and said defense is dismissed and said item is [struck] out. Since the complaint pleads a cause of action based upon a written document, the Statute of Frauds may not properly [906]*906be interposed as a defense. With respect to item " 5 ” of the demand for a bill of particulars, we are of the opinion that the complaint, with the exhibits annexed, sufficiently specified the work performed and its cost, and that further particularization is unnecessary. Beldoek, P. J., Ughetta, Kleinfeld, Hill and Rabin, JJ., concur.

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In an action to enforce a payment bond issued to the defendant contractor, D. Fortunato, Inc., by the defendant American Surety Company, to secure payment for labor performed and material furnished by subcontractors, the plaintiff, one of the subcontractors, appeals from an order of the Supreme Court, Westchester County, dated April 15,1964, which denied its motion: (a) to dismiss the defense of the Statute of Frauds pleaded by said defendants; and (b) to strike out item “5” from said defendants’ demand for a bill of particulars, requiring plaintiff to set forth in detail “ each and every item of work performed by [it] and the cost thereof.” Order reversed on the law, with $10 costs and disbursements; plaintiff’s motion to dismiss the said defehse and to strike out said item “5” of the demand for a bill of particulars is granted; and said defense is dismissed and said item is [struck] out. Since the complaint pleads a cause of action based upon a written document, the Statute of Frauds may not properly [906]*906be interposed as a defense. With respect to item " 5 ” of the demand for a bill of particulars, we are of the opinion that the complaint, with the exhibits annexed, sufficiently specified the work performed and its cost, and that further particularization is unnecessary. Beldoek, P. J., Ughetta, Kleinfeld, Hill and Rabin, JJ., concur.

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Bluebook (online)

22 A.D.2d 905, 255 N.Y.S.2d 493, 1964 N.Y. App. Div. LEXIS 2458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allied-industrial-manufacturing-supply-corp-v-d-fortunato-inc-nyappdiv-1964.