METROPOLIS CORP v. (and a third-party action). (2007)

In an action, inter alia, to recover damages for breach of contract, the defendants National Environmental Safety Company, Inc., and American Guarantee & Liability Insurance Company appeal from (1) a judgment of the Supreme Court, Queens County (Leviss, J.H.O.), entered May 18, 2005, which, upon a decision of the same court dated March 15, 2005, made after a nonjury trial, is in favor of the plaintiff and against them in the principal sum of $53,425.61, and (2) an order of the same court dated June 29, 2005, which denied the motion of the defendant National Environmental Safety Company, Inc., in effect, pursuant to CPLR 4404(b), to modify the decision and set aside the judgment.

ORDERED that the judgment and the order are affirmed, with one bill of costs.

After a nonjury trial, the trial court determined, inter alia, that the plaintiff, which was a subcontractor on a particular construction project, and which sought compensation for, inter alia, certain work that it performed in addition to the work that it was required to perform pursuant to the subcontract, was entitled to the sum of $53,425.61 for that extra work.   Contrary to the appellants' contention, the trial court's determinations were not only supported by legally sufficient evidence (see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145), but were also “warranted by the facts” (Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809;  see Tridee Assoc. v. New York City School Constr. Auth., 292 A.D.2d 444, 445, 739 N.Y.S.2d 179;  Mel-Stu Constr. Corp. v. Melwood Constr. Corp., 131 A.D.2d 823, 824, 517 N.Y.S.2d 87).

The appellants' remaining contentions are not properly before this court (see Parr v. Ronkonkoma Realty Venture I., 2 A.D.3d 820, 821, 769 N.Y.S.2d 389;  see also Roel Partnership v. Amwest Sur. Ins. Co., 258 A.D.2d 780, 781, 685 N.Y.S.2d 832;  CNY Mech. Assoc. v. Fidelity & Guar. Ins. Co., 212 A.D.2d 989, 990, 624 N.Y.S.2d 700;  CPLR 3015[a] ), or are without merit.

The plaintiff's contention that the trial court also should have awarded it the difference between the amount that it was to receive for the work that it was required to perform pursuant to the subcontract and the amount that it received for that work is not properly before this court, as the plaintiff did not cross-appeal from the judgment (see Burger v. Holzberg, 290 A.D.2d 469, 471, 736 N.Y.S.2d 416;  Matter of O'Reilly v. Nedelka, 212 A.D.2d 714, 622 N.Y.S.2d 793).