ISS International Service System, Inc. v. Pastreich Realty Organization, Inc.

194 A.D.2d 378, 598 N.Y.S.2d 499, 1993 N.Y. App. Div. LEXIS 5534

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 1993
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Beatrice Shainswit, J.), entered May 14, 1992, upon a jury verdict, in favor of plaintiff and against defendants in the sum of $177,090.63, inclusive of interest, costs and disbursements, unanimously affirmed, without costs.

In this action to recover unpaid fees for maintenance and cleaning services, we find ample evidence in the record to support the jury verdict in favor of plaintiff for the full amount of its .invoices, less $30,000 that defendants paid "on account”. We agree with the trial court that defendants’ counterclaim for fraud was not pleaded with the particularity required by CPLR 3016 (b) (see, Daukas v Shearson Hammill & Co., 23 AD2d 833), and that plaintiff made out a prima facie case of breach of contract based on the evidence that defendants orally agreed to pay for plaintiff’s services in accordance with the service contract defendants had with the former owner of the building. (See, Hylick v Halweil, 112 AD2d 400.) The comments made by the court to a defense witness during cross-examination and to defendants’ counsel served to clarify information for the jury and maintain control over the trial (Gallo v Supermarkets Gen. Corp., 112 AD2d 345, 348), and any unfairness or prejudice arising therefrom was in any event dissipated by proper curative instructions (Thoda v Arcoleo, 179 AD2d 508). There is no merit to defendants’ argument that they were deprived of a fair trial by a charge weighted in plaintiff’s favor. We have reviewed defendants’ remaining claims and find them to be without merit. Concur— Milonas, J. P., Ellerin, Ross, Asch and Kassal, JJ.