W.M.S. Builders, Inc. v. Newburgh Steel Products, Inc.

289 A.D.2d 567, 735 N.Y.S.2d 802, 2001 N.Y. App. Div. LEXIS 13034

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 2001
• Status: Published

Opinion

In an action to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Nassau County (McCarty, J.), entered August 16, 2000, which, upon a jury verdict, is in favor of the plaintiff and against it in the principal sum of $131,725.

Ordered that the judgment is affirmed, with costs.

Contrary to the defendant’s contentions, the plaintiffs proof of damages was legally sufficient to support the jury verdict against it (see, Cohen v Hallmark Cards, 45 NY2d 493, 499). “Proof of damages may be based solely on oral testimony as long as the witness has knowledge of the actual costs” (Electronic Servs. Intl. v Silvers, 284 AD2d 367, 368; see, D’Angelo v State of New York, 39 NY2d 781, 782-783). Here, the plaintiffs witness, who was a supervisor at the job site until the plaintiff was terminated, had knowledge of the actual costs (see, D’Angelo v State of New York, supra). The plaintiffs failure to offer into evidence any payroll records goes only to the credibility of its witness.

Furthermore, the Supreme Court properly concluded that the defendant waived the defense of improper service by failing to move to dismiss on that ground within 60 days of January 1, 1997, the effective date of the 1996 amendment to CPLR 3211 (e) (see, Alaska Seaboard Partners v Anninos, 259 AD2d 572, 573). Consequently, we do not reach the issue of whether service was properly effected.

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Luciano, J. P., Townes, Crane and Prudenti, JJ., concur.