J. A. Valenti Electric Co. v. Power Line Constructors, Inc.

123 A.D.2d 604, 506 N.Y.S.2d 769, 1986 N.Y. App. Div. LEXIS 60754

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 6, 1986
• Status: Published

Opinion

In an action to recover damages for breach of contract, Power Line Constructors, Inc. appeals (1) from so much of an order of the Supreme Court, Westchester County (Burchell, J.), dated March 27, 1985, as failed to include a provision stating that it was entitled to a reduction of the claim of the plaintiff against it pursuant to General Obligations Law § 15-108, and (2) from an order of the same court, dated June 24, 1985, which denied its motion for resettlement.

Order dated March 27, 1985 affirmed insofar as appealed from.

Appeal from the order dated June 24, 1985 dismissed. No appeal lies from an order denying a motion for resettlement (Men’s World Outlet v Estate of Steinberg, 101 AD2d 854).

The respondent is awarded one bill of costs.

Inasmuch as the appellant Power Line Constructors, Inc. failed to serve the plaintiff J. A. Valenti Electric Co., Inc. with either a notice of motion (CPLR 2214) or a notice of cross motion (CPLR 2215) demanding relief pursuant to General Obligations Law § 15-108, Special Term was correct in not providing for such relief in the order appealed from (see, Matter of Briger, 95 AD2d 887). Bracken, J. P., Brown, Weinstein and Rubin, JJ., concur.