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

Appellate Division of the Supreme Court of the State of New York·Decided December 9, 1996·Published·Cited by 3 cases

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.

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).

Pincite

234 A.D.2d 352 (Nannini & Callahan Excavating, Inc. v. Park Road Construction Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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