PRONTI v. SMUTZINGER (2008)

Appeal from an order of the Supreme Court (O'Shea, J.), entered October 15, 2007 in Chemung County, upon a decision of the court in favor of defendants.

The underlying facts are set forth in our decision in a prior appeal (35 A.D.3d 944, 825 N.Y.S.2d 577 [2006] ).   Briefly stated, plaintiff commenced an action contending that he was owed $1,860 for a roof repair job he undertook in 2002 for defendants.   Defendants asserted that the work was defective and incomplete, resulting in a cost to them of nearly $2,000 to correct and complete the project.   Following a nonjury trial, Supreme Court rendered a thorough written decision dismissing both plaintiff's complaint and defendants' counterclaims.   Plaintiff appeals.

 “[W]hile we possess broad review power in a nonjury trial, we do give deference to the trial court's ‘assessment of the quality of the evidence and the credibility of the witnesses' ” (Silverman v. Mergentime Corp./J.F. White, Inc., 252 A.D.2d 925, 926, 676 N.Y.S.2d 301 [1998], quoting Callanan Indus. v. Olympian Dev., 225 A.D.2d 941, 942, 639 N.Y.S.2d 185 [1996];  see Precision Founds. v. Ives, 4 A.D.3d 589, 593, 772 N.Y.S.2d 116 [2004] ).   Here, there was conflicting testimony regarding the germane events and, upon review of the record, we discern no reason to depart from the findings of Supreme Court.

 We find unpersuasive plaintiff's contention that it was reversible error not to receive into evidence the void contract and consider the amount set forth therein on the issue of reasonable value for services under the quantum meruit rubric.   While such proof may be considered (see Frank v. Feiss, 266 A.D.2d 825, 826, 698 N.Y.S.2d 363 [1999] ), Supreme Court was aware of the terms in the void contract since plaintiff had been permitted to testify about those terms.   Its decision not to accept those terms was within its province in this nonjury trial.

 Supreme Court acted well within its discretion in denying plaintiff's motion (made shortly before the scheduled trial date) to amend his complaint to add a cause of action for fraud, which was of dubious merit and unsupported by an acceptable excuse for not pursuing it earlier (see Moon v. Clear Channel Communications, 307 A.D.2d 628, 629-630, 763 N.Y.S.2d 157 [2003];  Kalivia Food Corp. v. Hunts Point Coop. Mkt., 244 A.D.2d 460, 461, 664 N.Y.S.2d 347 [1997] ).   The remaining arguments have been considered and found meritless.

ORDERED that the order is affirmed, with costs.

LAHTINEN, J.

SPAIN, J.P., KANE, MALONE JR. and STEIN, JJ., concur.