Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Mary Kim Dollard, J.), entered March 3, 2011.
H & B Reporting Co., Inc. v Bompart & Bompart, LLC
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This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2012
PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ
The judgment, after a non-jury trial, awarded plaintiff the principal sum of $1,829.35.
ORDERED that the judgment is modified by reducing the award in favor of plaintiff to the principal sum of $1,408.95; as so modified, the judgment is affirmed, without costs.
In this commercial claims action, plaintiff seeks to recover the principal sum of $1,829.35, alleging that it was not paid for stenographic services. The evidence adduced at a non-jury trial held on February 17, 2011 established that, upon defendant's request, plaintiff had agreed to provide defendant, for a fee, stenographic services and a transcript for each of seven depositions held. Plaintiff performed as agreed for the first five depositions by transcribing the proceedings and delivering transcripts no later than 32 days after the depositions were held. Defendant, however, did not pay for these services, and owed plaintiff $1,408.95 therefor. Plaintiff attended two more depositions held in August of 2010; however, it refused to deliver those two transcripts because defendant had failed to pay plaintiff the outstanding balance due on the previous five invoices. At trial, the Civil Court directed plaintiff to hand over to defendant the transcripts of the last two depositions. Defendant objected, claiming that their delivery, six months late, was untimely. Defendant conceded that it owed the full amount of $1,408.95 for the first five depositions. However, defendant claimed that it does not owe $420.40 for the last two depositions held on August 16 and August 31, 2010, due to plaintiff's failure to timely deliver the transcripts thereof. The Civil Court awarded plaintiff judgment in the principal sum of $1,829.35.
Upon a review of the record, we conclude that the judgment did not render substantial justice between the parties (see CCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 ; Williams v Roper, 269 AD2d 125, 126 ). While it was conceded that plaintiff was entitled to recover the principal sum of $1,408.95 for the first five depositions, plaintiff was not entitled to withhold delivery of the transcripts of the two depositions held in August 2010 based on defendant's breach of the prior contracts. The services performed for each deposition were performed pursuant to separate and independent contracts, particularly in light of the fact that each deposition related to a different client (see Christian v Christian, 42 NY2d 63, 73 ; Brown Harris Stevens on Site Mktg. & Sales, LLC v One York Prop., LLC, 69 AD3d 424, 425 ; Express Home Care Agency v VIP Health Servs., 275 AD2d 759, 760 ; 22 NY Jur 2d, Contracts § 266). Consequently, we find that plaintiff may not recover for the stenographic services rendered in connection with these two depositions since plaintiff's tender to defendant, in court, of the two transcripts, approximately six months after the depositions were held, was, under the circumstances, untimely in view of the parties' previous course of dealing and defendant's claim that the tender was too late and that it no longer wanted the transcripts (see Zev v Merman, 73 NY2d 781, 783 ).
Accordingly, the judgment is modified by reducing the award in favor of plaintiff to the principal sum of $1,408.95.
Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: August 27, 2012
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