Northeast Caissons, Inc. v. Columbus Construction Corp.

268 A.D.2d 512, 702 N.Y.S.2d 360, 2000 N.Y. App. Div. LEXIS 652

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 2000
• Status: Published

Opinion

—In an action to recover damages for breach of contract, (1) the plaintiffs appeal from so much of an order of the Supreme Court, Rockland County (Reliman, J.H.O.), entered August 10, 1998, as denied their motion for an award of an attorney’s fee, and (2) the defendants appeal from a judgment of the same court, entered October 8, 1998, which, upon a jury verdict, is in favor of the plaintiffs and against them in the principal sum of $405,357.

Ordered that the order is affirmed insofar as appealed from; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the plaintiffs are awarded one bill of costs.

The trial court providently exercised its discretion in denying the plaintiffs’ motion for an award of attorney’s fee because the defenses asserted by the defendants were not “without substantial basis in fact or law” (State Finance Law § 137 [4] [c]; see, Higbie Constr. v IPI Indus., 159 AD2d 558).

The trial court properly held that the “backcharge” reports proffered by the defendant Columbus Construction Corp. were not admissible pursuant to the business record exception to the hearsay rule in light of the defendants’ failure to lay a proper foundation for their admission (see, CPLR 4518 [a]; Rosenthal v Allstate Ins. Co., 248 AD2d 455). Santucci, J. P., S. Miller, Luciano and Feuerstein, JJ., concur.