96 A.D.2d 856 | N.Y. App. Div. | 1983
In an action to recover damages for breach of contract, the appeals are from (1) an order of the Supreme Court, Westchester County (Marbach, J.), entered June 9,1982, which denied with leave to renew, defendants’ motion to dismiss the complaint on the ground that the action was barred by res judicata, and (2) a judgment of the same court, entered June 16,1982, which, after a jury trial, awarded plaintiff the sum of $9,240. Appeal from the order dismissed (Matter ofAho, 39 NY2d 241, 248). Judgment affirmed. Plaintiff is awarded one bill of costs. Plaintiff entered into a contract with defendants whereby defendants agreed to perform certain landscaping and gardening services for plaintiff which included the planting of 500 new myrtle plants on an area of plaintiff’s property called the myrtle “bank” and the cleaning of this area. About two weeks after entering into this contract, plaintiff conveyed the subject property to GHP, Inc., a Florida corporation of which plaintiff was the president and treasurer as well as the sole director and stockholder. Twice in the late summer and early fall of 1975, employees of Troy Garden Nurseries sprayed the myrtle bank in an effort to destroy its weeds. By the spring of 1976, most of the myrtles on the bank were dead. In November, 1976, GHP, Inc., commenced an action against the same defendants as in the instant action. The complaint alleged breach of contract and negligent performance on the part of the defendants, and sought damages in the sum of $19,950.50. A trial in that