Joseph Rizzo Construction Co. v. Joseph Aragona & Sons, Inc.

202 A.D.2d 254, 609 N.Y.S.2d 781

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 1994
• Status: Published

Opinion

—Order, Supreme Court, Nassau County (Francis X. Becker, J.), entered on or about January 7, 1992, which, inter alia, granted plaintiff’s cross motion for confirmation of a Referee’s report, unanimously modified, on the law and the facts, to the extent of reducing the amount of the award in plaintiff’s favor to $16,091.38 with interest from the institution of this action, and otherwise affirmed, without costs.

With the exception of one item discussed below, the IAS Court properly confirmed the Referee’s report because the findings made were substantiated by the record (Kardanis v Velis, 90 AD2d 727). Most notably, defendants’ belated argument that they were entitled to a credit for an additional $37,126 in labor and services performed is belied by their failure to timely controvert the Referee’s finding that the parties had stipulated that defendants were to receive a total of $60,000 for services rendered on the construction job.

The IAS Court did err in failing to credit defendants with a $1,500 payment to the law firm of White & Cerrito, Esqs.; the Referee mistakenly credited the amount of $1,200. Since plaintiff does not dispute that this $300 credit is owed to defendants, the total amount of the net profits owed to Rizzo is adjusted accordingly.

We have considered defendants’ remaining contentions and find them to be without merit. Concur — Sullivan, J. P., Carro, Ellerin, Wallach and Nardelli, JJ.