Sub10k, Inc. v National Marketing Services, Ltd.

Sub10k, Inc. v National Mktg. Servs., Ltd. 2006 NY Slip Op 05940 [31 AD3d 744] July 25, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 20, 2006

Sub10k, Inc., Appellant,
v
National Marketing Services, Ltd., et al., Respondents.

—[*1]

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Nassau County (O'Connell, J.), dated July 27, 2005, as, after a nonjury trial, dismissed the complaint.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

"As this case was tried to the court, without a jury, this Court's power to review the evidence is as broad as that of the trial court, with appropriate regard given to the decision of the trial judge who was in a position to assess the credibility of the witnesses" (Bubba's Bagels of Wesley Hills, Inc. v Bergstol, 18 AD3d 411, 412 [2005]; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]). Contrary to the plaintiff's contention, the evidence adduced at the nonjury trial demonstrated that the contractual agreement in question was abandoned. The plaintiff acquiesced to the defendants' actions, which were inconsistent with the terms of the contract (see Aliperti v Laurel Links, Ltd., 27 AD3d 675 [2006]; Savitsky v Sukenik, 240 AD2d 557, 559 [1997]).

The Supreme Court therefore properly dismissed the complaint. Santucci, J.P., Krausman, Mastro and Skelos, JJ., concur.