Anthony Concrete Corp. v. Carbar Construction Corp.

Appellate Division of the Supreme Court of New York

Anthony Concrete Corp. v. Carbar Construction Corp.

61 A.D.2d 739, 401 N.Y.S.2d 795, 1978 N.Y. App. Div. LEXIS 10112

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

DecidedFebruary 2, 1978

StatusPublished

This text of 61 A.D.2d 739 (Anthony Concrete Corp. v. Carbar Construction Corp.) 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

Anthony Concrete Corp. v. Carbar Construction Corp., 61 A.D.2d 739, 401 N.Y.S.2d 795, 1978 N.Y. App. Div. LEXIS 10112 (N.Y. Ct. App. 1978).

Pincite

Opinion

Order of June 27, 1977 and judgment of July 13, 1977 of the Supreme Court, New York County, which granted the plaintiff’s motion for partial summary judgment in the sum of $20,385.98 plus interest, unanimously modified, on the law, without costs and without disbursements, to reduce the judgment to $10,411.73, and otherwise affirmed. Plaintiff had a subcontract under an arrangement whereby the defendants-appellants were general contractors with the Dormitory Authority of New York State for the construction of a college student center. Plaintiff was ordered to and performed extra work. The general contractor having paid $160,000 due under the contract, the plaintiff sued for the difference for the extra work. The defendant concedes that a sum of $24,090 for extra work was proper, but counterclaims for $15,168 for work which it claims it had to do to correct or complete the subcontractor’s job. Included in this counterclaim are sums for which the plaintiff has received payment and for which the plaintiff makes claims for payment. In addition, the defendants-appellants contend that under the terms of the contract with the Dormitory Authority, 6% of the over-all job was retained by the Dormitory Authority pending final completion and acceptance. The examination before trial of the defendants-appellants’ witness indicates that $37,425.24 is a justifiable amount in controversy. Deducting therefrom the amount of the counterclaim (which, of course, may include items for which the plaintiff makes claim for payment) plus the retainage of 6% of $197,425.24, leaves a balance of $10,411.73, for which partial summary judgment is granted. Concur—Kupferman, J. P., Birns, Silverman, Evans and Fein, JJ.

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Order of June 27, 1977 and judgment of July 13, 1977 of the Supreme Court, New York County, which granted the plaintiff’s motion for partial summary judgment in the sum of $20,385.98 plus interest, unanimously modified, on the law, without costs and without disbursements, to reduce the judgment to $10,411.73, and otherwise affirmed. Plaintiff had a subcontract under an arrangement whereby the defendants-appellants were general contractors with the Dormitory Authority of New York State for the construction of a college student center. Plaintiff was ordered to and performed extra work. The general contractor having paid $160,000 due under the contract, the plaintiff sued for the difference for the extra work. The defendant concedes that a sum of $24,090 for extra work was proper, but counterclaims for $15,168 for work which it claims it had to do to correct or complete the subcontractor’s job. Included in this counterclaim are sums for which the plaintiff has received payment and for which the plaintiff makes claims for payment. In addition, the defendants-appellants contend that under the terms of the contract with the Dormitory Authority, 6% of the over-all job was retained by the Dormitory Authority pending final completion and acceptance. The examination before trial of the defendants-appellants’ witness indicates that $37,425.24 is a justifiable amount in controversy. Deducting therefrom the amount of the counterclaim (which, of course, may include items for which the plaintiff makes claim for payment) plus the retainage of 6% of $197,425.24, leaves a balance of $10,411.73, for which partial summary judgment is granted. Concur—Kupferman, J. P., Birns, Silverman, Evans and Fein, JJ.

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Bluebook (online)

61 A.D.2d 739, 401 N.Y.S.2d 795, 1978 N.Y. App. Div. LEXIS 10112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anthony-concrete-corp-v-carbar-construction-corp-nyappdiv-1978.