Nannini & Callahan Excavating, Inc. v. Park Road Construction Corp.

Appellate Division of the Supreme Court of New York

Nannini & Callahan Excavating, Inc. v. Park Road Construction Corp.

234 A.D.2d 352, 651 N.Y.S.2d 334, 1996 N.Y. App. Div. LEXIS 12916

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 9, 1996

StatusPublished

Cited by3 cases

This text of 234 A.D.2d 352 (Nannini & Callahan Excavating, Inc. v. Park Road Construction Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Nannini & Callahan Excavating, Inc. v. Park Road Construction Corp., 234 A.D.2d 352, 651 N.Y.S.2d 334, 1996 N.Y. App. Div. LEXIS 12916 (N.Y. Ct. App. 1996).

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Opinion

—In an action to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Orange County (Green, J.H.O.), entered August 8, 1995, which, after a nonjury trial, is in favor of the plaintiff and against it in the principal sum of $44,084.20. Justice Joy has been substituted for the late Justice Hart (see, 22 NYCRR 670.1 [c]).

Ordered that the judgment is affirmed, with costs.

The trial court properly admitted into evidence, under the business record exception to the hearsay rule, a series of weight slips to establish the value of goods provided by the plaintiff in the construction of a roadway for the defendant (CPLR 4518 [a] ; see also, People v Kennedy, 68 NY2d 569, 579-580; Johnson v Lutz, 253 NY 124, 128). Moreover, the court correctly determined that the defendant’s failure to plead partial payment as an affirmative defense in this action bars it from receiving a setoff against the judgment (CPLR 3211 [e]; 3018 [b] ; see also, Munson v New York Seed Improvement Coop., 64 NY2d 985). In any event, the defendant failed to prove that the $25,000 payment, which it sought to have applied as a setoff against the judgment, was in fact a payment for which it never received credit. Miller, J. P., Altman, Joy and Goldstein, JJ., concur.

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—In an action to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Orange County (Green, J.H.O.), entered August 8, 1995, which, after a nonjury trial, is in favor of the plaintiff and against it in the principal sum of $44,084.20. Justice Joy has been substituted for the late Justice Hart (see, 22 NYCRR 670.1 [c]).

Ordered that the judgment is affirmed, with costs.

The trial court properly admitted into evidence, under the business record exception to the hearsay rule, a series of weight slips to establish the value of goods provided by the plaintiff in the construction of a roadway for the defendant (CPLR 4518 [a] ; see also, People v Kennedy, 68 NY2d 569, 579-580; Johnson v Lutz, 253 NY 124, 128). Moreover, the court correctly determined that the defendant’s failure to plead partial payment as an affirmative defense in this action bars it from receiving a setoff against the judgment (CPLR 3211 [e]; 3018 [b] ; see also, Munson v New York Seed Improvement Coop., 64 NY2d 985). In any event, the defendant failed to prove that the $25,000 payment, which it sought to have applied as a setoff against the judgment, was in fact a payment for which it never received credit. Miller, J. P., Altman, Joy and Goldstein, JJ., concur.

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Bluebook (online)

234 A.D.2d 352, 651 N.Y.S.2d 334, 1996 N.Y. App. Div. LEXIS 12916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nannini-callahan-excavating-inc-v-park-road-construction-corp-nyappdiv-1996.

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