Judgment, Supreme Court, New York County (Herman Cahn, J.), entered February 19, 2008, after a non-jury trial, in defendant's favor, dismissing the complaint pursuant to an order, same court and Justice, entered on or about February 7, 2008, unanimously affirmed, with costs. Appeal from the above order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
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.
Gonzalez, P.J., Saxe, McGuire, Acosta, Roman, JJ.
In this action for, inter alia, goods sold and delivered, the trial court's findings, which "rest[ed] in large measure on considerations relating to the credibility of the witnesses" (Claridge Gardens v Menotti, 160 AD2d 544, 545 ), were based upon a fair interpretation of the evidence. Although defendant initially acknowledged an agency relationship in its answer (see CPLR 3018[a]), it denied during discovery that such a relationship existed, explaining that the admission was taken out of context, and the evidence adduced at trial was insufficient to support plaintiff's agency claim. Furthermore, there was no evidence that defendant dealt directly with either plaintiff, nor were there contracts signed by defendant with respect to the subject sales.
We have considered plaintiffs' remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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