34 A.D.2d 935 | N.Y. App. Div. | 1970
Judgment entered July 24, 1969 which granted plaintiff’s motion for summary judgment for a total of $1,625,229.36, inclusive of interest and costs, and order entered August 6, 1969 granting defendant’s motion for reargument and on reargument adhering to the original decision are unanimously affirmed, with $50 costs and disbursements to the respondent. Defendant does not deny the expenditures or knowledge thereof, plaintiff offered voluntarily a discovery of all checks; defendant did not take advantage of this offer. The expenditures were accepted by the court as prima facie proof of the extent of defendant’s liability, in accordance with paragraph 5 of the Indemnity Agreements, the pertinent portion of which follows: “ 5. The vouchers or other evidence of payments made by the Surety under any of such bonds or obligations shall be prima facie evidence in establishing the liability assumed ”. The defendant was then required to come forward with proof if he sought to dispute the items. The defendant was familiar with the job; the plaintiff surety company was not. The defendant was thus in a better position to determine the propriety and reasonableness of the expenditures for completion of the jobs than the plaintiff. This could have been done by physical inspection alone. Defendant has failed to produce any proof whatsoever. For these reasons and for the reasons stated in the opinion of Mr. Justice Gellinoff at Special Term, we affirm the grant of summary judgment and the adherence thereto on reargument. Concur — Nunez, McNally and Steuer, JJ.; Capozzoli, J. P., and Tilzer, J., concur in the following memorandum: We concur in the affirmance. But for the defendant’s failure for two years, and on 12 occasions, to take.advantage of the opportunity to examine plaintiff before trial, we would have remanded this matter for an assessment of damages. [64 Misc 2d 1.]
