65 A.D.2d 737 | N.Y. App. Div. | 1978
Judgment, Supreme Court, New York County, entered September 19, 1977, in favor of defendant, on its counterclaims, in the sum of $19,105.80, affirmed, without costs or disbursements. Although the president of defendant corporation was suspicious of an invoice received on or about June 6, 1975, which, it is now contended, was a dummy invoice to cover up an overpayment of $5,000 by defendant on the North Shore Towers project, it is still not clear, even after trial, when and how the subterfuge was discovered. Plaintiff’s objection to defendant’s motion to allow the interposition of a counterclaim for the recovery of this overpayment was limited to the fact that it related to a construction project other than the one on which plaintiff had brought suit, that the action had been on the Trial Calendar for 18 months, and that plaintiff had obtained a general release from defendant for the North Shore Towers project. Thus, no clear issue was posed as to the date of discovery of the overcharge, and Special Term assumed that the unavailability of the "shop tickets and delivery slips” was the reason for the delay in asserting this particular counterclaim. Hence, we find no abuse of discretion in allowing amendment of the answer to assert this counterclaim. As for the other ground cited by the dissent as a