Pro Touch Constr. Servs., LLC v Stillwell Ready Mix, LLC

[*1] Pro Touch Constr. Servs., LLC v Stillwell Ready Mix, LLC 2015 NY Slip Op 51802(U) Decided on December 8, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2014-1646 K C

Pro Touch Construction Services, LLC, Respondent,

against

Stillwell Ready Mix, LLC, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 29, 2014. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,000.

ORDERED that the judgment is affirmed, without costs.

Plaintiff, a subcontractor, commenced this commercial claims action to recover the sum of $5,000, representing the costs it claimed to have incurred as a result of defendant having furnished it with allegedly defective concrete at a job site. After a nonjury trial, a judgment was entered in plaintiff's favor in the principal sum of $2,000.

This court's review is limited to determining whether the judgment provided the parties with substantial justice according to the rules and principles of substantive law (CCA 1807-A; see CCA 1804-A; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]). Defendant contends that substantial justice was not done between the parties because the judgment was based on hearsay evidence alone. While it is true that no judgment, even one in a commercial claims action, may rest entirely on hearsay evidence (see Zelnik v Bidermann Indus. U.S.A., 242 AD2d 227, 228 [1997]), defendant's contention is without merit, as the record demonstrates that plaintiff's witness, who was at the job site at the time of the pouring and application of the concrete, testified that she had personally observed the defective condition of the concrete. Plaintiff also submitted to the court photographs of the concrete showing its condition.

Contrary to defendant's contention, liability may be predicated either upon defendant's breach of the implied warranty of fitness for a particular purpose (see UCC 2-315) or the implied warranty of merchantability (see UCC 2-314), entitling plaintiff to damages, including incidental and consequential damages (see UCC 2-714, 2-715).

As the judgment provided the parties with substantial justice (see CCA 1804-A, 1807-A), the judgment is affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: December 08, 2015