Jefferson Heights Quarry, Inc. v. Fort Pike Associates

191 A.D.2d 972, 594 N.Y.S.2d 508

Opinion

—Order unanimously modified on the law and as modified affirmed without costs and judgment ordered in accordance with the following Memorandum: Plaintiff entered into a contract with defendant PRP Construction, Inc. (PRP) for the sale of "large base and cap stone” to be used in the construction of a breakwater. Defendant Fort Pike Associates was the property owner and defendant Harmer-Hill General Contractors, Inc. (Harmer-Hill) was the subcontractor. Plaintiff commenced this action seeking payment for stone accepted by defendants, totalling $35,340.55, and defendants PRP and Fort Pike Associates counterclaimed, asserting that plaintiff breached the contract by delivering stone smaller than that required by the contract. After a trial, at which PRP agreed to assume any liability found against Harmer-Hill, the court denied relief to any party. That was error. Defendants accepted the stone and took control of it by using it to build the breakwater; defendants therefore owe plaintiff the contract price (UCC 2-606 [1]; 2-607 [1]; see, Orbis Co. v Rivera, 140 AD2d 679, 680; Zappala & Co. v Pyramid Co., 81 AD2d 983, lv denied 55 NY2d 603). Because defendants failed to perfect their appeal, we do not reach their arguments concerning their counterclaims (see, Hecht v City of New York, 60 NY2d 57). We order that judgment be entered in favor of plaintiff in the amount of $35,340.55 plus interest in accordance with the terms of the contract until judgment is entered, at which time interest shall be computed at the statutory rate (CPLR 5003, 5004; see, Marine Mgt. v Seco Mgt., 176 AD2d 252, 253, affd 80 NY2d 886). (Appeal from Order of Supreme Court, Jefferson County, Gilbert, J. — Breach of Contract.) Present — Callahan, J. P., Pine, Lawton, Boomer and Davis, JJ.