A&S Stelco Construction Corp. v Axa Global Risks United States Insurance Company

A&S Stelco Constr. Corp. v Axa Global Risks United States Ins. Co. 2005 NY Slip Op 09450 [24 AD3d 216] December 13, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

A&S Stelco Construction Corp., Appellant,
v
AXA Global Risks United States Insurance Company, Formerly Known as Colonia Insurance Company, Respondent.

—[*1]

Judgment, Supreme Court, New York County (Edward H. Lehner, J.), entered March 17, 2004, after a nonjury trial, dismissing the complaint in an action by a roofing subcontractor to recover on a payment bond, unanimously affirmed, with costs.

Plaintiff relies solely on its principal's testimony to establish the existence of the oral unit price agreement it alleges it had with the general contractor, as well as the quantity of work it performed on the project as measured by a count of the number of slates it installed on the project's roof. However, plaintiff adduced no evidence that it was ever paid or had ever demanded payment on a unit price basis during the two-year period it worked on the project, and defendant adduced contemporaneous payroll records indicating that plaintiff was paid biweekly on the basis of the number of hours worked. Furthermore, it appears that plaintiff's principal participated in money laundering and tax evasion schemes for which the general contractor was convicted. Clearly a fair interpretation of the evidence supports the trial court's dismissal of the action (see Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]). Concur—Mazzarelli, J.P., Saxe, Friedman, Sullivan and Williams, JJ.