D'Aquino Monaco, Inc. v Schibeck Corp.

[*1] D'Aquino Monaco, Inc. v Schibeck Corp. 2009 NY Slip Op 52387(U) [25 Misc 3d 139(A)] Decided on November 25, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 25, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570561/09.

D'Aquino Monaco, Inc., Plaintiff-Respondent,

against

Schibeck Corp., d/b/a Property Furniture, Defendant-Appellant.

Defendant appeals from a judgment of the Civil Court of the City of New York, New York County (Arthur F. Engoron, J.), entered October 28, 2008, after a nonjury trial, awarding plaintiff damages in the principal sum of $4,250.00.

Per Curiam.

Order (Arthur F. Engoron, J.), entered October 28, 2008, modified to vacate the award for "delay" damages, thereby reducing plaintiff's recovery to the principal sum of $l,533.00, and as so modified, affirmed, with $10 costs.

While the trial court properly awarded plaintiff hoisting charges as a reasonable expense incident to the defendant's established breach of the parties' sales agreement (see UCC § 2-715[1]), the additional award of "delay" damages in favor of plaintiff was unauthorized. Plaintiff made no claim for "delay" damages in its complaint, and never moved to amend the complaint to include such a claim. In any event, this item of damages was not established on this record, which shows that any delay in the table's delivery was not attributable to defendant's conduct.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 25, 2009