Murnane Associates, Inc. v. Harrison Garage Parking Corp.

269 A.D.2d 854, 703 N.Y.S.2d 801, 2000 N.Y. App. Div. LEXIS 1809

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 16, 2000
• Status: Published

Opinion

—Judgment unanimously affirmed without costs. Memorandum: On a prior appeal, we held that defendant City of Syracuse (City) breached its contractual duty to retain 5% of the progress payments it made to defendant Harrison Garage Parking Corp. and that plaintiff was a third-party beneficiary of that contractual duty (Murnane Assocs. v Harrison Garage Parking Corp., 239 AD2d 882, 882-883). We now conclude that Supreme Court properly granted plaintiff’s motion for summary judgment against the City in the amount of $674,368.15, with 6% interest from October 1, 1992. Plaintiff met its initial burden by establishing the total amount of progress payments due for its work and the total amount unpaid under the subcontract, and the City failed to raise a triable issue of fact. Because the amount unpaid under the subcontract is greater than the amount the City should have retained for plaintiffs benefit, plaintiff is entitled to recover the full amount the City should have retained.

We reject the contention of the City that summary judgment should have been denied to enable it to conduct discovery. The City had ample opportunity for discovery and made no demands (see, Meath v Mishrick, 68 NY2d 992, 994-995). Finally, we conclude that the court did not abuse its discretion by awarding predecision interest of 6% (see, CPLR 5001 [a]; General Municipal Law § 3-a [1]; see also, Rodriguez v New York City Hous. Auth., 91 NY2d 76, 80-81). (Appeals from Judgment of Supreme Court, Onondaga County, Elliott, J. — Summary Judgment.) Present — Green, A. P. J., Pine, Pigott, Jr., and Balio, JJ.