Appeal from a judgment of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered January 27, 2010.
Smith-Nedd v Crystal Manor, Inc.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 24, 2012
PRESENT: PESCE, P.J., WESTON and ALIOTTA, JJ
The judgment, insofar as appealed from as limited by the brief, after a non-jury trial, awarded plaintiff the principal sum of $5,791.50.
ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and the matter is remitted to the Civil Court for a new trial limited to the issue of damages to be awarded on plaintiff's cause of action.
Insofar as is relevant to the appeal, the facts are as follows: Plaintiff commenced this action to recover the sum of $10,000, representing a portion of the money she had paid to defendant Crystal Manor, Inc. (Crystal Manor) for her wedding reception. At a non-jury trial, plaintiff testified, and defendants did not dispute, that Crystal Manor had contracted with plaintiff to provide a hall, beverages, and food for a cocktail hour and a meal to be served at plaintiff's wedding reception, for a total cost of $15,000, which sum plaintiff had paid in full prior to the reception. Plaintiff and two other individuals who had attended the reception testified, among other things, that the food served at the reception was undercooked and partially inedible and that it had been served so late that some of the wedding guests had departed before being served. Plaintiff also stated, and one of her witnesses confirmed, that plaintiff had provided Crystal Manor with unassembled pieces of her wedding cake, in adequate quantities, which Crystal Manor was to assemble and serve to the guests, but that Crystal Manor failed to serve many of the guests the cake. Crystal Manor's witness contested plaintiff's allegations concerning the inadequacy of the food and services provided at the reception. Following trial, the Civil Court, based on its evaluation of the credibility of the testimony offered by the parties, ruled that defendants had partially breached the parties' contract by providing unsatisfactory food and services, and awarded judgment to plaintiff in the principal sum of $5,791.50.
A contract between a caterer and its customer is a hybrid sale of goods and services (see Fallsview Glatt Kosher Caterers, Inc. v Rosenfeld, 7 Misc 3d 557 [Civ Ct, Kings County 2005]; see also Milau Assoc. v North Ave. Dev. Corp., 42 NY2d 482 ). As a contract for goods, a catering contract is subject to the warranty of merchantability of the Uniform Commercial Code that goods be fit for the ordinary purposes for which they are used (see UCC 2-314 ,  [c], and Official Comment 5; 18 Lord, Williston on Contracts § 52:89 [4th ed]). The Civil Court's determination, in effect, that Crystal Manor had violated the implied warranty of merchantability by serving food which was not reasonably fit for consumption, was premised on an assessment of the witnesses' credibility, which we find no reason to disturb (see McGuirk v Mugs Pub, 250 AD2d 824 ). Likewise, the court's finding, that the services provided by Crystal Manor were inadequate, is sufficient to support a finding of liability against Crystal Manor to the extent that it was premised on Crystal Manor's breach of so much of its contract as was to provide services to plaintiff.
Defendants contend that the Civil Court improvidently exercised its discretion in denying defendants' request for a brief adjournment in order to allow witnesses who were not present in the courtroom, but were on "standby," to testify. However, defendants have failed to indicate how the additional testimony they hoped to adduce would add to the court's understanding of the underlying facts of the case or would be non-cumulative. Under the circumstances, we conclude that the Civil Court did not commit reversible error with respect to its denial of an adjournment (see Rodriguez v New York City Tr. Auth., 81 AD3d 804 ; Woody v Foot Locker Retail, Inc., 79 AD3d 740 ; see also CPLR 2002).
Defendants further assert that reversal is warranted because of the lack of a basis for the amount awarded plaintiff. To the extent that defendants provided defective food, plaintiff was entitled to recover the difference between the value of the food provided and the value of the food as it was impliedly warranted (see UCC 2-314, 2-714 ). Similarly, to the extent that plaintiff sought damages based on breach of that portion of the catering contract which was for services, she was entitled to recover the difference in the value between the services contracted for and those delivered (see 36 NY Jur 2d, Damages § 37; see also Griffin-Amiel v Terris Orchestras, 178 Misc 2d 71, 78 [Yonkers City Ct 1998]). However, since the record is devoid of any proof establishing a basis for the Civil Court's calculation of the sum of $5,791.50 awarded plaintiff, the judgment, insofar as appealed from, is reversed and the matter is remitted to the Civil Court for a new trial limited to the issue of damages on plaintiff's cause of action.
As defendants have raised no issue on appeal with respect to the finding of liability on the part of defendant Farragut Manor, Inc., we do not reach the propriety of the Civil ...