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Garber Building Supplies, Inc v. Shalom Corporation and Shalom Benezry

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


June 15, 2011

GARBER BUILDING SUPPLIES, INC.,
RESPONDENT,
v.
SHALOM CORPORATION AND SHALOM BENEZRY,
APPELLANTS.

Appeal from a decision of the Civil Court of the City of New York, Richmond County (Kim Dollard, J.), dated September 8, 2009, and from a judgment of the same court entered December 9, 2009.

Garber Bldg. Supplies, Inc. v Shalom Corp.

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 15, 2011

PRESENT: STEINHARDT, J.P., GOLIA and RIOS, JJ

The decision, insofar as appealed from as limited by the brief, after a non-jury trial, awarded plaintiff the principal sum of $9,966.22, plus interest and attorney's fees, which fees were to be determined following a submission by plaintiff. The judgment awarded plaintiff the total sum of $37,834.02, including, among other things, attorney's fees in the sum of $14,604.55.

ORDERED that the appeal from the decision is dismissed as no appeal lies from a decision (CCA 1702; see Greenfield v Tassinari, 8 AD3d 529 [2004]); and it is further,

ORDERED that the judgment is affirmed, without costs.

At the non-jury trial, plaintiff established that it had sold building materials to defendant Shalom Corporation, for which the corporate defendant and the individual defendant guarantor, Shalom Benezry, had failed to pay. Plaintiff submitted invoices made out to the corporate defendant setting forth the amounts due and laid a proper foundation for their admission as business records (see People v Kennedy, 68 NY2d 569 [1986]). Plaintiff also provided testimony that the invoices had been mailed to defendants on a monthly basis and retained without objection. Defendants conceded that they had not submitted written objections to the invoices, but asserted that they had orally objected to them. The individual defendant testified that the corporate defendant had ceased doing business prior to the time the building material was allegedly sold to it. In a decision dated September 8, 2009, the Civil Court found in favor of plaintiff in the principal sum of $9,966.22, plus interest and attorney's fees, which fees were to be determined following a submission by plaintiff. Following plaintiff's submission, judgment was entered in the total sum of $37,834.02, which included attorney's fees in the sum of $14,604.55.

We find that the Civil Court was entitled to credit the invoices, admitted as business records, as well as the testimony proffered by plaintiff's witnesses over defendants' assertion that the corporate defendant did not order the subject building materials (see Torkieh v Fox Paper, 2 Misc 3d 135[A], 2004 NY Slip Op 50219[U] [App Term, 2d & 11th Jud Dists 2004]; see also Sharp Elecs. Corp. v Arkin-Medo, Inc., 86 AD2d 817 [1982]). Moreover, the Civil Court properly based its determination of the outstanding balance for goods sold and delivered only on the invoices from May 2002 through December 2002 -- the time period covered in the complaint.

Contrary to defendants' contention, the complaint was not defective pursuant to CPLR 3016 (f) for plaintiff's failure to itemize the invoices. CPLR 3016 (f) merely imposes an obligation on a defendant answering a complaint, which is specifically pleaded, to identify the particular items he disputes and the reasons for each objection (see Duban v Platt, 23 AD2d 660, affd 17 NY2d 526 [1965]; Netguistics v Coldwell Banker Prime Props., Inc., 23 AD3d 719 [2005]). Defendants claim that they were released from liability because the extension of credit to defendant corporation and the individual defendant's personal guaranty thereof, as set forth in the credit agreement, were limited to the sum of $2,000, and thereafter increased by plaintiff without authority. However, we find no language in the parties' agreement limiting defendants' liability to the initial $2,000 line of credit which had been extended to the corporate defendant. Indeed, item 6 of the terms and conditions of the contract explicitly states, in relevant part, "I (WE) personally guaranty any and all bills, interest thereon, charges, etc.," and the record contains no evidence that the parties intended to modify the substantive terms of the agreement and limit Benezry's personal obligation to $2,000 (see Brewster Tr. Mix Corp v McLean, 169 AD2d 1036 [1991]). Consequently, there is no basis to disturb the Civil Court's finding that plaintiff established defendants' liability based upon an account stated and personal guaranty.

With respect to the award of attorney's fees, we note that there is no requirement that a contractual provision for attorney's fees set forth how said fees are to be calculated. The determination of reasonable attorney's fees ultimately remains within the sound discretion of the trial court (see Miller Realty Assoc. v Amendola, 51 AD3d 987, 990 [2008]). Upon a review of the record, which includes a detailed transaction list setting forth the date, fee rate, amount of time and description of the services plaintiff's firm provided for each charge as well as evidence that the fee rate was comparable to the prevailing rate for similar work in the community, we find that the award of legal fees was reasonable and warranted for the services actually rendered by plaintiff's counsel (see Yonkers Rib House, Inc. v 1789 Cent Park Corp., 58 AD3d 618 [2009]; Kamco Supply Corp v Annex Contr. Corp., 261 AD2d 363 [1999]).

Accordingly, the judgment is affirmed.

Steinhardt, J.P., Golia and Rios, JJ., concur.

Decision Date: June 15, 2011

20110615

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