NORTHEAST CAISSONS INC v. COLUMBUS CONSTRUCTION CORP (2000)

In an action to recover damages for breach of contract, (1) the plaintiffs appeal from so much of an order of the Supreme Court, Rockland County (Kellman, J.H.O.), entered August 10, 1998, as denied their motion for an award of an attorney's fee, and (2) the defendants appeal from a judgment of the same court, entered October 8, 1998, which, upon a jury verdict, is in favor of the plaintiffs and against them in the principal sum of $405,357.

ORDERED that the order is affirmed insofar as appealed from;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that the plaintiffs are awarded one bill of costs.

The trial court providently exercised its discretion in denying the plaintiffs' motion for an award of attorney's fee because the defenses asserted by the defendants were not “without substantial basis in fact or law” (State Finance Law § 137[4][c];  see, Higbie Constr. v. IPI Indus., 159 A.D.2d 558, 552 N.Y.S.2d 654).

The trial court properly held that the “backcharge” reports proffered by the defendant Columbus Construction Corp. were not admissible pursuant to the business record exception to the hearsay rule in light of the defendants' failure to lay a proper foundation for their admission (see, CPLR 4518[a];  Rosenthal v. Allstate Ins. Co., 248 A.D.2d 455, 670 N.Y.S.2d 862).

MEMORANDUM BY THE COURT.