Ancona v Cipriano

[*1] Ancona v Cipriano 2005 NYSlipOp 51033(U) Decided on June 28, 2005 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: RUDOLPH, P.J., McCABE and COVELLO, JJ.
2004-1205 N C

Carmen Ancona, d/b/a Rich-Air Conditioning & Refrigeration Co., Appellant,

against

Mario Cipriano, d/b/a/ Gino's Pizzeria, Respondent.

Appeal by plaintiff from so much of an order of the District Court, Nassau County (S. Fairgrieve, J.), dated June 9, 2004, as granted plaintiff only partial summary judgment in the sum of $12,000, and stayed the entry of judgment pending determination of defendant's counterclaim.

Order insofar as appealed from unanimously affirmed without costs.

Plaintiff commenced the instant breach of contract action to recover the entire balance due ($15,000) under the contract for the removal and installation of air conditioners, and for insulation and roof work. Defendant counterclaimed to recover the sum of $25,000 alleging that plaintiff breached the contract by refusing to complete the work and seeking damages sustained as a result of plaintiff's improper workmanship. The contract contained a payment schedule which provided that defendant was to pay the sum of $10,000 upon signing the contract, $12,000 upon delivery of the equipment and $3,000 upon completion of the work. In addition, the contract included a provision for reasonable attorney's fees incurred to recover any monies owed plaintiff. Plaintiff moved for summary judgment. It is undisputed that defendant paid plaintiff the sum of $10,000 upon signing the contract, that the equipment was delivered and that defendant made no payments thereafter. In its opposition papers, defendant argued that plaintiff breached the contract by refusing to complete the work, and the work that was completed by plaintiff was done improperly, thereby causing damages. Annexed to plaintiff's moving papers was the defendant's combined response to plaintiff's discovery demands which included numerous estimates for repairs to, inter alia, the roof. Plaintiff's contention that it was entitled to recover the remaining $15,000 balance due under the contract lacks merit inasmuch as a triable issue of fact exists as to whether the work performed by plaintiff caused damage to defendant's building (see Zuckerman v City of New York, 49 NY2d 557 [1980]). [*2]However, the court's award of $12,000, representing only the amount due upon delivery of the equipment, was proper. Furthermore, the court below properly exercised its discretion when it stayed execution of the judgment pending determination of defendant's counterclaim (see CPLR 3212 [e] [2]; Bartfield v RMTS Assocs., 283 AD2d 240 [2001]; Moody v Monacelli, 225 AD2d 926 [1996]).

Plaintiff is entitled to recover reasonable attorney's fees pursuant to the contract. However, because plaintiff's attorney failed to establish the reasonableness of the fee requested, the court properly denied that branch of plaintiff's motion for summary judgment which sought attorney's fees.
Decision Date: June 28, 2005