Sutton Carpet, Ltd. v Midboro Mgt.

[*1] Sutton Carpet, Ltd. v Midboro Mgt. 2010 NY Slip Op 51933(U) [29 Misc 3d 133(A)] Decided on November 12, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
.

Sutton Carpet, Ltd., Plaintiff-Appellant,570453/10

against

Midboro Management, Defendant-Respondent.

Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, New York County (Barbara Jaffe, J.), entered on or about February 17, 2009, after trial, in favor of defendant dismissing the claims.

Per Curiam.

Judgment (Barbara Jaffe, J.), entered on or about February 17, 2009, affirmed, without costs.

The record and the ends of substantial justice (see CCA 1804, 1807) support the dismissal of this small claims action. The credited trial evidence demonstrated that defendant incurred legal fees to commence and prosecute a lawsuit against plaintiff (a carpeting contractor) to compel it to fulfill its contractual obligations and install carpeting at defendant's building. Since the legal fees incurred by defendant were directly occasioned and made necessary by plaintiff's breach of the parties' underlying contract (see BGW Dev. Corp. v Mount Kisco Lodge, 264 AD2d 433 [1999]; Aero Garage Corp. v Hirschfeld, 185 AD2d 775 [1992]), the court properly deducted those fees from the balance owed by defendant to plaintiff under the contract.

We have reviewed plaintiff's remaining claims and, to the extent that they are properly before us, find them to be without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT
I concur


NOVEMBER 12, 2010
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
October 2010 Term
Schoenfeld, J.P., Shulman, Hunter, Jr., JJ.
Sutton Carpet, Ltd., NY County Clerk's No.
Plaintiff-Appellant,570453/10 -
against-
Midboro Management,Calendar No. 10-231
Defendant-Respondent.
Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, New York County (Barbara Jaffe, J.), entered on or about February 17, 2009, after trial, in favor of defendant dismissing the claims.
Per Curiam.
Judgment (Barbara Jaffe, J.), entered on or about February 17, 2009, affirmed, without costs.
The record and the ends of substantial justice (see CCA 1804, 1807) support the dismissal of this small claims action. The credited trial evidence demonstrated that defendant incurred legal fees to commence and prosecute a lawsuit against plaintiff (a carpeting contractor) to compel it to fulfill its contractual obligations and install carpeting at defendant's building. Since the legal fees incurred by defendant were directly occasioned and made necessary by plaintiff's breach of the parties' underlying contract (see BGW Dev. Corp. v Mount Kisco Lodge, 264 AD2d 433 [1999]; Aero Garage Corp. v Hirschfeld, 185 AD2d 775 [1992]), the court properly deducted those fees from the balance owed by defendant to plaintiff under the contract.
We have reviewed plaintiff's remaining claims and, to the extent that they are properly before us, find them to be without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT
Decision Date: November 12, 2010



Decision Date: November 12, 2010