Serena Construction Corp. v. Valley Drywall Service, Inc.

45 A.D.2d 896, 357 N.Y.S.2d 214, 1974 N.Y. App. Div. LEXIS 4516

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 3, 1974
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court in favor of defendant, entered December 4, 1973 in Tompkins County, upon a decision of the court following a trial, without a jury, at an adjourned Special Term. Defendant counterclaimed under a contract with plaintiff, and in quantum meruit, for drywall installation work performed by it after action had been commenced by plaintiff for breach of the same contract. Plaintiff now appeals from the judgment entered in defendant’s favor upon that counterclaim following a trial of-the issues without a jury. We affirm. There was ample evidentiary support for the trial court’s decision accepting defendant’s version of events and implicitly rejecting the account proffered by plaintiff. The failure of plaintiff to make a progress payment when due constituted a breach of the agreement between the parties which was neither justified by plaintiff’s unilateral action in crediting against the sum then owed the cost of materials supplied by it, nor waived by defendant’s action in continuing work until such time as it became apparent that the payment so accrued was not forthcoming. The absence of a dollar amount in the ad damnum clause of defendant’s counterclaim was adequately explained as a typographical oversight, especially when the amount thereof was elsewhere stated in that pleading. In any event, defendant’s motion to cure that defect was timely made without prejudice to plaintiff and it was well within the discretion of the trial court to permit such a correction under the eircumstancés (CPLR 3017, subd. [a]; CPLR 3025, 3026). We have examined plaintiff’s other contentions and find them to be without merit. Judgment affirmed, with costs. Herlihy, P. J., Staley, Jr., Greenblott, Cooke and Kane, JJ., concur.