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Ecoline, Inc. v. W.H. Peepels Company, Inc.

Supreme Court of New York, Second Department

August 23, 2017

Ecoline, Inc., respondent-appellant,
v.
W.H. Peepels Company, Inc., et al., appellants-respondents. Index No. 4420/06

          Argued-May 23, 2017

         D53203 G/htr

          Kert & Kert PLLC, Garden City, NY (Arnold L. Kert of counsel), for appellants-respondents.

          Kalavesios & Choudhry, PLLC, Brooklyn, NY (Kiren Choudhry and Susan R. Nudelman of counsel), for respondent-appellant.

          MARK C. DILLON, J.P. LEONARD B. AUSTIN SHERI S. ROMAN JEFFREY A. COHEN, JJ.

          DECISION & ORDER

         In an action, inter alia, to recover damages for breach of contract, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Grays, J.), dated April 29, 2015, as granted that branch of the plaintiffs motion which was for summary judgment on its first cause of action in the principal sum of $53, 442.57, together with statutory interest; and the plaintiff cross-appeals, as limited by its brief, from so much of the same order as directed that statutory interest be awarded only from May 11, 2006.

         ORDERED that the order is affirmed insofar as appealed from; and it is further, ORDERED that the order is reversed insofar as cross-appealed from, on the law, and statutory interest is awarded from June 12, 2001; and it is further, ORDERED that one bill of costs is awarded to the plaintiff.

         The plaintiff, an insulation subcontractor, was hired by the defendants in connection with the renovation of a commercial building located in New York City. The plaintiff commenced this action to recover damages, inter alia, for breach of contract, and subsequently moved for summary judgment. In support of its motion, the plaintiff submitted evidence including the parties' agreement dated October 18, 1999, which provided that the insulation work was to be done on a "Time and Materials" basis, and various invoices. The plaintiffs evidence established that the defendants promptly paid the plaintiff's first two invoices for work performed from the end of October through December 1999, to which were attached weekly time sheets specifying work done by each class of laborer, as well as bills for materials. The plaintiffs third invoice, which was submitted in March 2000, was rejected by the defendants on the basis that the plaintiff had failed to submit proof that its workers had signed in upon arriving at the subject building prior to reporting to the job site. The defendants had never previously requested proof of the plaintiff's workers' signatures. The plaintiff submitted a final modified invoice for $53, 442.57, representing the outstanding sum due as of June 12, 2001, which the defendant had failed to pay. The Supreme Court, inter alia, granted that branch of the plaintiff s motion which was for summary judgment on the first cause ofaction alleging breach of contract.

         The plaintiff met its prima facie burden of entitlement to judgment as a matter of law on the cause of action to recover damages for breach of contract by offering proof that it had an agreement to provide the defendants with labor and materials to complete a certain job, that the defendants agreed to compensate the plaintiff on a time and materials basis, and that no payment was made (see Alvarez v Prospect Hosp., 68 N.Y.2d 320; Clean Earth of N. Jersey, Inc., v Northcoast Maintenance Corp., 142 A.D.3d 1032, 1035; Castle Oil Corp. v Bokhari, 52 A.D.3d 762). In opposition, the defendants were required to submit evidentiary proof in admissible form sufficient to establish the existence of a triable issue of fact that would require a trial of the action (see Zuckerman v City of New York, 49 N.Y.2d 557, 562; Castle Oil Corp. v Bokhari, 52 A.D.3d at 762763; Becker v Shore Drugs, Inc., 296 A.D.2d 515, 516). The defendants failed to raise a triable issue off act (see Castle Oil Corp. v Bokhari, 52 A.D.3d at 762-763; Becker v Shore Drugs, 296 A.D.2d at 516). Accordingly, the Supreme Court properly granted that branch of the plaintiff s motion which was for summary judgment on its first cause ofaction (see Castle Oil Corp. v Bokhari, 52 A.D.3d at 762-763; Boise Cascade Off. Prods. Corp. v Gilman & Ciocia, Inc., 30 A.D.3d 454; Becker v Shore Drugs, 296 A.D.2d at 516), and awarded damages in the sum of $53, 442.57.

         The award of interest on the judgment should be calculated as of the earliest ascertainable date the cause of action existed (see CPLR 5001[b]; Centennial Contrs. Enters. V East N.Y. Renovation Corp.,79 A.D.3d 690, 693). Here, the evidence submitted by the ...


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