Judgment, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered August 28, 2007, after a jury trial, awarding plaintiff $244,441.99, inclusive of interest and costs, affirmed, with costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Friedman, J.P., Sweeny, McGuire, Renwick, Freedman, JJ.
"The question of whether a verdict is against the weight of the evidence involves what is in large part a discretionary balancing of many factors (see Mann v Hunt, 283 App Div 140). For a court to conclude as a matter of law that a jury verdict is not supported by sufficient evidence, however, requires a harsher and more basic assessment of the jury verdict. It is necessary to first conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v Hallmark Cards, 45 NY2d 493, 499 ). The party seeking this finding faces a "lofty hurdle" (Adamy v Ziriakus, 92 NY2d 396, 400 ). As a result, "in any case in which it can be said that the evidence is such that it would not be utterly irrational for a jury to reach the result it has determined upon, and thus a valid question of fact does exit, the court may not conclude that the verdict is as a matter of law not supported by the evidence" (Cohen, 45 NY2d at 499).
A fair interpretation of the evidence (see McDermott v Coffey Beanery, Ltd., 9 AD3d 195, 205-206 ) supports the jury's findings that defendant breached the parties' contract, that the partial waivers signed by defendant were coerced by economic duress, and that plaintiff sustained the damages it claimed.
The dissent disagrees with the jury's verdict, characterizing the testimony of plaintiff's president as incredible and contending that the judgment should be vacated the matter remanded for a new trial. However, "[d]isputes as to proof are for the jury to resolve in assessing... the credibility of the witnesses" (Manne v Museum of Modern Art, 39 AD3d 368  [internal quotation marks omitted]), and the jury's "resolution of any conflicting evidence is entitled to deference" (id.).
The facts are set forth in the dissent. In the interest of brevity, we will not provide a separate statement of the facts, although we do not agree with all of our colleague's characterizations of the testimony presented at trial.
Plaintiff's president testified that he believed the installments listed in the purchase order in question would be paid in full on the date listed regardless of the amount of work completed as of those dates. He further testified that, at least in the early part of its performance of the purchase order, its electricians had to wait until certain other work was done, such as the installation of the sprinkler system by plumbers, before they could fully staff the project. As a result, according to plaintiff's president, it made sense to have fewer electricians working at the beginning of the project and more as the project neared completion. Although there was some equivocation as to the number of electricians plaintiff committed to have on the job at the beginning of the project, this was an issue for the jury to take into consideration during its deliberations. The jury could easily have credited this testimony instead of defendant's vice-president's testimony that plaintiff was not providing enough workers in the early stages of the job, requiring defendant to employ its own electricians and deduct that cost from plaintiff's invoices. Although the purchase order provided that "[f]ailure to deliver materials or services in an timely fashion will release contractor from any obligation to purchase implied by this order," nowhere in the purchase order is there any indication that plaintiff was to have completed a certain amount of work on the specified payment dates in order for a particular installment to be paid in full. Nor can it be said that plaintiff is claiming that it needed to do nothing to get paid, as the dissent seems to characterize plaintiff's position, as plaintiff's president clearly testified that his concept of the project was to provide the bulk of his electricians toward the end of the project, when the other trade craftsmen had completed their work and were out of the way. As plaintiff's president testified on cross-examination: "Most of the work is going to be done closer to the end of the job. So the last two weeks or the last month we could be using, you know, it could be any amount of electricians there. We could be using up to forty electricians at the end of the job in the last two weeks to do different things... So all the equipment that the other trades working needs to be out of the building, and the electricians was doing the testing for - need to have clear reign to pull stations and go back and forth to the main board... [W]e could need forty guys at the end. There was never a discussion about exactly how many electricians we were going to use at any one time."
A fair interpretation of this testimony supports the jury's implicit conclusion that plaintiff did not fail to deliver services in a timely fashion.
Moreover, the jury was free to reject defendant's testimony and documentary evidence regarding its claim that plaintiff did not have sufficient number of electricians on the job site to timely complete the work. The dissent argues that defendant submitted documents (consisting mostly of its own letters to plaintiff) to support its claim that plaintiff failed to provide adequate personnel to complete the job, and that there was no written evidence from plaintiff that protested or contradicted defendant's letters. However, it is undisputed that one of the reasons why plaintiff was hired by defendant as its subcontractor was the fact that Ray Evans, an employee of defendant, had previously worked with plaintiff's president and knew his work. Plaintiff's president testified that he normally would have responded to defendant's letters in writing but, because of his relationship with Evans, he instead had oral discussions with Evans and defendant's vice-president. In fact, when asked about any writings sent by defendant to plaintiff, plaintiff's president testified on cross-examination that, while he did not respond to each of defendant's letters in writing, "I was in contact with, I was in contact with Ray, and um, and we were discussing constantly and he was the one that was actually writing, doing the paperwork." Defendant did not call Evans as a witness to rebut this testimony. Moreover, plaintiff's president also testified that with respect to plaintiff's invoice for the second installment payment, he deducted defendant's labor costs under duress. He testified, again on cross-examination: "Q. Then he does a calculation of, um, Costal's cost, that they will need to deduct in order to make up the - for the people that they have provided to the job site; do you see that?A. Yes. I see that yes, and I never agreed to this.Q. Then they send you this letter and then before you can get payment, you have to sign a partial waiver and release of lien, correct?A. Yes.Q. So is this why you testified earlier that you were forced to sign this?A. I need to get my money and I signed it, yes, to get the money.
The jury obviously credited this testimony and, on this record, it cannot be said that it was unfair to do so.
Nor do plaintiff's invoices provide support for defendant's position that plaintiff failed to provide adequate workers to perform the necessary work in a timely manner. While the dissent correctly points out that "plaintiff provided its certified payroll records to defendant as it was processing the installment payments," the actual invoices/payment requisitions that plaintiff submitted to defendant neither included nor referenced payroll records*fn1. Defendant's letters to plaintiff do not suggest that plaintiff had to submit payroll records in order to be paid, and such are not required pursuant to the terms of the purchase order. As noted, the purchase order itself, which was drafted by defendant, does not provide for completion by plaintiff of a certain percentage of the work to receive the first payment, an additional percentage of the work to receive the second payment, and so on. In fact, plaintiff's president testified on cross-examination that defendant did not pay the full amount of the first installment because it "didn't have the money to pay me." The following colloquy took place: "Q. They told you that they did not have the money to pay you?A. Yeah. They were - um, you know, they were like let's work, let's work it out next month and partial payment and we'll work it out next month."
This presented a clear conflict in the testimony that was for the jury to resolve. The jury could fairly conclude that plaintiff was paid less than the full amount of the first installment not because it failed to deliver services in a timely fashion, but because defendant did not have the money. The jury could also fairly find that plaintiff's request for $250,000 instead of $237,000 (the amount set forth in the purchase order) in its second requisition resulted from, as plaintiff's president testified, defendant's failure to pay the full contract amount requested in the first invoice ($80,000 instead of $107,350), and not because it claimed it did additional work on the project. This too is an issue of credibility that the jury resolved in plaintiff's favor.
Plaintiff's claim that defendant guaranteed that it would make a profit, when viewed in the context of the entirety of the negotiations leading up to the contract, does not strain credulity as suggested by the dissent. Plaintiff's original proposal to install the fire alarm system was in the amount of $1,375,667. Defendant found this price to be too high, and the parties entered into negotiations, eventually agreeing on a price of $1,130,000. According to plaintiff's president's testimony, defendant said that plaintiff's original proposal was "overkill on the profit" and that "we [defendant] are sure you [plaintiff] [will] make money if you give us the better price, and will still make... a lot of profit." The jury could fairly have credited plaintiff's testimony in this regard in arriving at its verdict.
Finally, plaintiff is not impermissibly seeking to recover on a theory of quantum meruit. The trial court instructed the jury, without objection, "The non-breaching party is allowed to rescind the contract... It may... sue in quantum meruit for the reasonable value of the services that it provided to the breaching party, less any payments already received" (see Whitmyer Bros. v State of New York, 47 NY2d 960, 962 ).
In brief, the credibility and weight of plaintiff's president's explanations as to why he complied with certain demands from defendant, such as the production of payroll records, and did not respond in writing to defendant's letters raised issues that were appropriately left to the jury, and it cannot be said that the jury's conclusions are against the weight of the evidence.
A court may not interfere with the fact-finding function of a jury because it would have evaluated credibility in a different manner (McDermott v Coffee Beanery, Ltd., 9 AD3d at 206; Rivera v 4064 Realty Co., 17 AD3d 201, 203 , lv denied 5 NY3d 713 ).
Since we find the jury's verdict is based upon a valid line of reasoning supported by sufficient evidence, we affirm ...