| Hugh O'Kane Elec. Co., LLC v MasTec N. Am., Inc. |
| 2007 NY Slip Op 09083 [45 AD3d 413] |
| November 20, 2007 |
| Appellate Division, First Department |
| Hugh O'Kane Electric Co., LLC, Respondent, v MasTecNorth America, Inc., Doing Business as Wilde Construction,Appellant. |
—[*1] Tunstead & Schechter, Jericho (Jeremy Kalina of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Charles E. Ramos, J.),entered July 11, 2006, which, after a nonjury trial, awarded plaintiff damages in the amount of$2,467,517.76, plus interest in the amount of $1,098,214.41; order, same court and Justice,entered July 18, 2006, which found that defendant was barred by the doctrine of equitableestoppel from asserting the pay-when-paid provision of the contract between the parties; andorder, same court and Justice, entered November 30, 2006, which denied defendant's motion toset aside the verdict, unanimously affirmed, with one bill of costs.
Contrary to defendant's contention, the trial court correctly apprehended the question of factto be determined at trial, in accordance with this Court's order (19 AD3d 126, 128 [2005]) andthe parties' stipulation, as whether defendant should be estopped from asserting thepay-when-paid provision as an affirmative defense. The issue was not whether defendantspecifically misrepresented the financial status of the project owner but whether it mademisrepresentations that it knew were false regarding whether plaintiff would be paid for its work,thereby inducing plaintiff to continue working at the site at its own expense.
Although the trial court did not set forth the specific facts it deemed essential to its decision,as required by CPLR 4213 (b), upon our independent factual review of the complete record(see Matter of Allen v Black, 275 AD2d 207, 209 [2000]; Weckstein v Breitbart,111 AD2d 6, 8 [1985]), we find that the record supports the court's determination. Defendantrepeatedly represented that plaintiff would be paid for the work it performed pursuant to thesubcontract between the parties, when it was aware that the project owner, which was ultimatelyresponsible for payment, was having serious financial difficulties and was millions of dollars indebt. In response to the assertion of plaintiff's representative that plaintiff would cease workingon the project if payment was not forthcoming, defendant repeated its assurances of payment,thereby inducing plaintiff to continue working on the project, expending additional money inmaterials and labor for which it was never paid. This evidence is sufficient under Florida law,which governed the subcontract, to establish that defendant should be estopped from enforcing[*2]the pay-when-paid provision of the contract (see FloridaDept. of Health & Rehabilitative Servs. v S.A.P, 835 So 2d 1091, 1096-1097 [Fla 2002];Rinker Materials Corp. v Palmer First Nat. Bank & Trust Co. of Sarasota, 361 So 2d 156[Fla 1978]).
The court properly awarded interest at a rate of 9% per annum from August 1, 2001. This isan action for breach of contract and not, as defendant asserts, an action sounding in quantummeruit (see CPLR 5001 [a]).
We have considered defendant's additional arguments and find them unavailing.Concur—Lippman, P.J., Mazzarelli, Marlow, Catterson and Kavanagh, JJ.