DONNINGER CONSTRUCTION INC v. BROWN INC

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DONNINGER CONSTRUCTION, INC., appellant, v. C.W. BROWN, INC., respondent.

Decided: January 22, 2014

PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and SANDRA L. SGROI, JJ. Schwartz & Blumenstein, New York, N.Y. (Clifford Schwartz of counsel), for appellant. Andrew Greene & Associates, P.C., White Plains, N.Y. (Paul T. Vink of counsel), for respondent.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals (1) from a decision of the Supreme Court, Suffolk County (Gazzillo, J.), dated March 27, 2012, made after a nonjury trial, and (2), as limited by its brief, from so much of a judgment of the same court entered August 1, 2012, as, upon the decision, is in favor of the defendant and against it dismissing the first cause of action.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 509–510); and it is further,

ORDERED that the judgment is reversed insofar as appealed from, on the facts, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of an appropriate amended judgment, inter alia, awarding the plaintiff the principal sum of $18,479, plus interest, on the first cause of action in accordance herewith; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

This case arises from a dispute over payment for work performed pursuant to a construction contract. Initially, we note that, although the work was located in Stamford, Connecticut, both parties are New York corporations, their course of dealing was established in New York, the subject contract was negotiated and entered into in New York, and the parties' principals, who also testified at trial, were New York domiciliaries. Accordingly, applying a “center of gravity” or “grouping of contacts” analysis, it is clear that New York is the State which “has the most significant relationship to the transaction and the parties” (Jimenez v. Monadnock Const., Inc., 109 AD3d 514, 516). Therefore, contrary to the defendant's contention, New York law applies in this case (see Matter of Midland Ins. Co., 16 NY3d 536, 543; Zurich Ins. Co. v. Shearson Lehman Hutton, 84 N.Y.2d 309, 317).

Contrary to the plaintiff's contention, General Business Law § 756–a et seq., known as the “prompt payment law,” did not bar the defendant from asserting any defenses to the plaintiff's claims because the defendant allegedly failed to issue a written disapproval on the invoices that the plaintiff had submitted to it. Pursuant to General Business Law § 756–a(2)(a)(ii), “[u]pon delivery of an invoice ․ a contractor or subcontractor shall approve or disapprove all or a portion of [an] invoice within twelve business days.” General Business Law § 756–b, which is entitled “Remedies,” provides for the imposition of interest on the unpaid balance of a submitted invoice, for the suspension of performance, and for arbitration. However, nothing in General Business Law § 756–b provides that a contractor's failure to timely disapprove or make payment on an invoice prevents the contractor from contesting, acts as a waiver of a contractor's ability to contest, or constitutes an admission that the contractor owes the invoiced sum. Thus, the defendant properly asserted its defenses to the plaintiff's breach of contract claims.

In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds “warranted by the facts,” bearing in mind that the trial judge had the advantage of seeing the witnesses and hearing the testimony (Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499; see Metropolitan Switch Bd. Mfg. Co., Inc. v. B & G Elec. Contrs., Div. of B & G Indus., Inc., 96 AD3d 725, 726). Here, the trial court's determination dismissing the plaintiff's first cause of action in its entirety was not warranted by the facts. At trial, the plaintiff adduced evidence that it was owed damages for work it performed for the defendant. In response, the defendant demonstrated that the full amount sought by the plaintiff (approximately $216,000) was subject to various deductions for, inter alia, “back charges,” incorrect invoicing, and improper performance of some of the work. However, even giving full credit to these claimed deductions, the plaintiff nevertheless proved damages in the sum of $18,479. Accordingly, the plaintiff is entitled to judgment on its first cause of action, which sought damages for breach of contract, in the principal sum of $18,479, plus interest.

The plaintiff's remaining contentions are without merit.

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