Franco Belli Plumbing & Heating & Sons, Inc. v. Citnalta Constr. Corp.

2020 NY Slip Op 1016

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 2020
• Docket: 107725/11 -8970
• Status: Published

Opinion

Franco Belli Plumbing & Heating & Sons, Inc. v Citnalta Constr. Corp. (2020 NY Slip Op 01016)

Franco Belli Plumbing & Heating & Sons, Inc. v Citnalta Constr. Corp.

2020 NY Slip Op 01016

Decided on February 13, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 13, 2020
Gische, J.P., Kapnick, Webber, Moulton, JJ.

107725/11 -8970 11018N &

[*1] Franco Belli Plumbing & Heating & Sons, Inc., Plaintiff-Respondent,

v

Citnalta Construction Corp., et al., Defendants-Appellants, New York City School Construction Authority, Defendant. The Surety & Fidelity Association of America, Amicus Curiae.

The Law Office of Thomas D. Czik, Glen Cove (Thomas D. Czik of counsel), for appellants.

Terrence O'Connor, P.C., Bronx (Terrence O'Connor of counsel), for respondent.

Chiesa Shahinian & Giantomasi PC, New York (Armen Shahinian of counsel), for amicus curiae.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered November 30, 2018, after a nonjury trial, which, to the extent appealed from as limited by the briefs, found in plaintiff's favor on its claims for onsite overtime premium, extra foremen, rerouting waste lines, withheld retainage, and costs of a bond, and declared that plaintiff is entitled to attorneys' fees pursuant to State Finance Law § 137(4)(c), unanimously modified, on the facts, to delete the declaration that plaintiff is entitled to attorneys' fees, and otherwise affirmed, without costs.

There is no basis for disturbing the trial court's extensive and detailed findings of fact as to plaintiff's claims for onsite overtime premium, extra foremen, rerouting waste lines, withheld retainage, and costs of a bond (see Horsford v Bacott, 32 AD3d 310, 312 [1st Dept 2006]], affd 8 NY3d 874 [2007]). However, the court improvidently exercised its discretion in awarding plaintiff attorneys' fees pursuant to State Finance Law § 137(4)(c). We find, "upon reviewing the entire record," that it does not appear that the defense was "without substantial basis in fact or law" (id.).

M-8970 - Franco Belli Plumbing & Heating & Sons, Inc. v Citnalta Constr. Corp.

Motion to strike a portion of reply brief denied.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 13, 2020

CLERK