93 A.D.2d 878 | N.Y. App. Div. | 1983
In an action to recover the balance due for materials manufactured and delivered pursuant to a written agreement, defendant KPJ Associates appeals from an order and judgment (one paper) of the Supreme Court, Rockland County (Coppola, J.), entered May 6, 1982, which, after a nonjury trial, awarded plaintiff the principal sum of $10,303.01. Order and judgment affirmed, with costs. At issue is the amount due plaintiff, a concrete block manufacturer, for accepted nonconforming goods, namely, precast concrete panels for an office building. It would appear that the balance due for panels sold and accepted by defendant, a general partnership, amounted to $16,303.10. However, defendant maintains that it was entitled to a $12,000 offset representing the amount withheld by Metropolitan Life Insurance Company, the construction mortgagee, from progress payments due defendant until defects in the building were remedied. The architect retained by the construction mortgagee to periodically inspect and report on the project testified that of the $12,000 held back by the mortgagee until exterior defects in the building were remedied, “more than” 50% was attributable to shortcomings in the manufacture of the panels, as opposed to deficiencies in defendant’s