G.S. Schwartz & Co., Inc. v Noble Gift Packaging, Inc.

[*1] G.S. Schwartz & Co., Inc. v Noble Gift Packaging, Inc. 2013 NY Slip Op 50817(U) Decided on May 21, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 21, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
570603/12.

G.S. Schwartz & Co., Inc., Plaintiff-Respondent,

against

Noble Gift Packaging, Inc., Defendant-Appellant.

Defendant appeals from a judgment of the Civil Court of the City of New York, New York County (Andrea Masley, J.), entered November 29, 2011, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $35,372.

Per Curiam.

Judgment (Andrea Masley, J.), entered November 29, 2011, modified to reduce plaintiff's damage award to the principal sum of $28,372; as modified, judgment affirmed, without costs.

Contract liability was properly imposed on defendant, since the weight of the trial evidence supports a finding that plaintiff made reasonable efforts to perform the public relations work contemplated by the parties' letter agreement and, further, that plaintiff was justified in terminating the agreement based on defendant's repeated payment defaults and demonstrated lack of cooperation. The record shows that plaintiff undertook several major marketing and media projects at defendant's behest, including a number of those that were outlined in the promotional plan presented to defendant prior to execution of the letter agreement, and at least one additional project — the preparation of defendant's sales catalogue — that was not initially contemplated by the parties. " On a bench trial, the decision of the fact-finding court should not be disturbed on appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses'" (Thoreson v Penthouse, Intl., 179 AD2d 29, 31 [1992], affd 80 NY2d 490 [1992], quoting Claridge Gardens v Menotti, 160 AD2d 544, 544-545 [1990]).

The court's damage award, save for a single exception addressed below, was also supported by the evidence adduced at trial. However, in the absence of any showing that plaintiff engaged in "winding down projects" or otherwise rendered services on defendant's behalf after November 6, 2008, there was no basis in the record to require defendant to pay plaintiff's final invoice of November 15, 2008. We modify the judgment accordingly.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 21, 2013