SILVERITE CONSTRUCTION CO INC v. TOWN OF NORTH HEMPSTEAD

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Supreme Court, Appellate Division, Second Department, New York.

SILVERITE CONSTRUCTION CO., INC., respondent-appellant, v. TOWN OF NORTH HEMPSTEAD, appellant-respondent.

Decided: March 29, 1999

SONDRA MILLER, J.P., FRED T. SANTUCCI, WILLIAM D. FRIEDMANN and ANITA R. FLORIO, JJ. Robert F. Van Der Waag, East Williston, N.Y., for appellant-respondent. McDonough Marcus Cohn Tretter Heller & Kanca, New York, N.Y. (Franklin E. Tretter and Eugene H. Goldberg of counsel), for respondent-appellant.

In an action to recover damages for breach of a construction contract, the defendant appeals from so much of an order of the Supreme Court, Nassau County (Burke, J.), dated September 29, 1997, as granted that branch of the plaintiff's motion which was to set aside a jury verdict in its favor pursuant to CPLR 4404 and for a new trial, and the plaintiff cross-appeals from so much of the same order as denied that branch of its motion which was for judgment in its favor as a matter of law.

ORDERED that the order is reversed insofar as appealed from, on the law, that branch of the plaintiff's motion which was to set aside the verdict in favor of the defendant Town of North Hempstead and for a new trial is denied, and the verdict in favor of the defendant is reinstated;  and it is further,

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

ORDERED that the defendant is awarded one bill of costs.

The Supreme Court improperly set aside the verdict in favor of the defendant Town of North Hempstead, since it was based upon a fair interpretation of the evidence (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 410 N.Y.S.2d 282, 382 N.E.2d 1145;  Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184).   On this record, the jury could have found that the discovery of hazardous waste at the construction site rendered the parties' contract impossible to perform (see, Kel Kim Corp. v. Central Markets, Inc., 70 N.Y.2d 900, 524 N.Y.S.2d 384, 519 N.E.2d 295).

In light of our determination, we do not reach the parties' remaining contentions.

MEMORANDUM BY THE COURT.

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