Nannini & Callahan Excavating, Inc. v. Park Road Construction Corp.

Dec 9, 1996
Versions:234 A.D.2d 352
651 N.Y.S.2d 334
1996 N.Y. App. Div. LEXIS 12916

—In an action to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Orange County (Green, J.H.O.), entered August 8, 1995, which, after a nonjury trial, is in favor of the plaintiff and against it in the principal sum of $44,084.20. Justice Joy has been substituted for the late Justice Hart (see, 22 NYCRR 670.1 [c]).

Ordered that the judgment is affirmed, with costs.

The trial court properly admitted into evidence, under the business record exception to the hearsay rule, a series of weight slips to establish the value of goods provided by the plaintiff in the construction of a roadway for the defendant (CPLR 4518 [a] ; see also, People v Kennedy, 68 NY2d 569, 579-580; Johnson v Lutz, 253 NY 124, 128). Moreover, the court correctly determined that the defendant’s failure to plead partial payment as an affirmative defense in this action bars it from receiving a setoff against the judgment (CPLR 3211 [e]; 3018 [b] ; see also, Munson v New York Seed Improvement Coop., 64 NY2d 985). In any event, the defendant failed to prove that the $25,000 payment, which it sought to have applied as a setoff against the judgment, was in fact a payment for which it never received credit. Miller, J. P., Altman, Joy and Goldstein, JJ., concur.