| Tambe Elec., Inc. v Home Depot U.S.A., Inc. |
| 2008 NY Slip Op 02232 [49 AD3d 1161] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| Tambe Electric, Inc., Respondent, v Home Depot U.S.A.,Inc., Appellant. |
—[*1] Woods Oviatt Gilman LLP, Rochester (Robert D. Hooks of counsel), forplaintiff-respondent.
Appeal from a judgment of the Supreme Court, Ontario County (Kenneth R. Fisher, J.),entered April 25, 2007 in a breach of contract action. The judgment, upon plaintiff's motion forsummary judgment, granted plaintiff judgment in the amount of $69,085.58 plus interest togetherwith costs and disbursements.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby providing that plaintiff recover against defendant the sum of $68,598.46 and as modified thejudgment is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages in the amount of$69,085.58 for defendant's alleged breach of a contract pursuant to which defendant was toprovide copper wire to plaintiff at a price quoted by plaintiff. We note at the outset that, althoughdefendant appeals from an order granting plaintiff's motion for summary judgment, the order wassubsumed in the subsequent judgment. Nevertheless, we exercise our discretion to treat thenotice of appeal as valid and deem the appeal as taken from the judgment (see Hughes vNussbaumer, Clarke & Velzy, 140 AD2d 988 [1988]; see also CPLR 5520 [c]).
With respect to the merits, we conclude that plaintiff met its burden of establishing itsentitlement to judgment as a matter of law by establishing that there was a contract between theparties and that defendant breached that contract (see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]). We reject the contention of defendant that it raised atriable issue of fact by presenting evidence of an oral condition precedent requiring payment infull by plaintiff at the time that defendant accepted the price quoted by plaintiff. "[P]arolevidence may be admissible to prove a condition precedent to the legal effectiveness of a writtenagreement if the condition is not contradictory or at variance with its express terms" (Bank ofSuffolk County v Kite, 49 NY2d 827, 828 [1980]; see Niskayuna Sq., LLC v 81 & 3 of Watertown, Inc., 12 AD3d1160 [2004]; Tropical Leasing v Fiermonte Chevrolet, 80 AD2d 467, 469 [1981]).Here, the parol evidence is at variance with the written agreement, which expressly gave plaintiffthe option of purchasing the goods over time (see generally Bank of Suffolk County, 49NY2d at 828). We conclude, however, that the accurate amount of damages sustained by plaintiffis $68,598.46, and we therefore modify the judgment accordingly. Present—Scudder, P.J.,Martoche, Centra, Fahey and Gorski, JJ.