901 PROPERTIES LLC v. BEAR GLASS INC (2026)

Order, Supreme Court, New York (Arlene P. Bluth, J.), entered August 8, 2025, which, following a bench trial, found in favor of defendant Bear Glass, Inc. on its counterclaim and awarded it judgment against plaintiff in the amount of $62,400, plus interest, unanimously affirmed, without costs.

The trial court properly excluded from evidence invoices from a nonparty which plaintiff sought to admit as business records without supportive testimony from a representative of the nonparty.  Absent testimony from the nonparty, plaintiff was required to establish through testimony or otherwise that it had knowledge of the nonparty's business or billing practices or routinely used the invoices in its business;  because it did not do so the invoices did not qualify for the business record exception (see CPLR 4518;  State of New York v 158th St. & Riverside Dr. Hous. Co., Inc., 100 AD3d 1293, 1296 [3d Dept 2012], lv denied 20 NY3d 858 [2013] ).  In any event, the excluded invoices were not relevant, given that they did not purport to describe work on any windows, or any defects or damage allegedly caused by defendant.

The trial court's finding that the parties' contract did not provide for replacement of all windows at the subject premises should also be sustained on this record, where the only unrebutted testimony concerning the number of windows was that there were more than the number stated in the contract, establishing defendant's entitlement to be paid for the extra work (Nightingale Rest. Corp. v. Shak Food Corp., 155 A.D.2d 297, 297–98 [1st Dept 1989], lv denied 76 N.Y.2d 702 [1990] ).

The trial court did not violate CPLR 4213(a) since plaintiff never submitted a request for findings of fact.  In any event, the trial court made detailed findings of fact, including a review of the relevant testimony and exhibits (cf.  Matter of Jose L. I., 46 N.Y.2d 1024, 1025 [1979] ).