Les S. Thompson & Co. v. Lucille Murray Child Development Center, Inc.

13 A.D.3d 120, 785 N.Y.S.2d 690, 2004 N.Y. App. Div. LEXIS 15017

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 2004
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered June 3, 2003, after a nonjury trial, awarding plaintiff the principal sum of $61,377, unanimously affirmed, without costs.

There was overwhelming evidence of an account stated for plaintiffs invoiced fees for professional accounting services. The trial court exercised its discretion appropriately in denying defendants’ request for an adjournment after they had rested, in order to call an additional unidentified witness to impeach the “surprise” testimony of their own principal witness, since such testimony was the result of their own unpreparedness (cf. Halloran v Spina Floor Covering, 185 AD2d 149 [(decision No. 25) 1992]). The court did question numerous witnesses for both sides, but this was clearly intended to clarify the testimony and expedite the proceedings. It neither interfered with the presentation of evidence or cross-examination of witnesses, nor displayed bias or prejudice against any party (see Carson v New York City Health & Hosps. Corp., 178 AD2d 265 [1991]). The affirmative defense of incapacity to sue was never pleaded, and was thus waived and not preserved for appellate review (see City of New York v Delafield 246 Corp., 236 AD2d 11, 22 [1997], lv denied 91 NY2d 811 [1998]). We have considered defendants’ other arguments and find them without merit. Concur—Buckley, P.J., Ellerin, Lerner, Marlow and Catterson, JJ.