| Marjam Supply Co., Inc. v All Craft Fabricators, Inc. |
| 2012 NY Slip Op 02845 [94 AD3d 954] |
| April 17, 2012 |
| Appellate Division, Second Department |
| Marjam Supply Co., Inc., Appellant, v All CraftFabricators, Inc., et al., Defendants, and D. Robert Donaldson et al.,Respondents. |
—[*1] Lazer Aptheker Rosella & Yedid, P.C., Melville, N.Y. (Todd M. Gardella, Robin S.Abramowitz, and Daniel J. McGrath of counsel), for respondents.
In an action to recover payment for goods sold and delivered, the plaintiff appeals from ajudgment of the Supreme Court, Suffolk County (Rebolini, J.), dated November 15, 2010, which,upon a decision of the same court dated August 25, 2010, made after a nonjury trial, is in favor ofthe defendants D. Robert Donaldson, Douglas Robert Donaldson, and Donaldson Acoustics Co.,Inc., and against it dismissing the fifth through eighth causes of action, and awarding thedefendant Donaldson Acoustics Co., Inc., the principal sum of $27,477.64 on its counterclaim.
Ordered that the judgment is affirmed, with costs.
"In reviewing a trial court's findings of fact following a nonjury trial, this Court's authority isas broad as that of the trial court and includes the power to render the judgment it finds warrantedby the facts, bearing in mind that due regard must be given to the decision of a trial judge whowas in the position to assess the evidence and the credibility of the witnesses" (Bank of N.Y. v Spadafora, 92 AD3d629, 630 [2012] [internal quotation marks omitted]; see Northern WestchesterProfessional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Bauerschmidt & Sons, Inc. v Nova Cas.Co., 91 AD3d 892 [2012]; A.Montilli Plumbing & Heating Corp. v Valentino, 90 AD3d 961 [2011]). Here, theSupreme Court's findings that the agreed-upon price for the infill panels delivered by the plaintiffto the defendant Donaldson Acoustics Co., Inc. (hereinafter Donaldson Acoustics), was $5.95 perunit, and that the plaintiff had no right to increase the price for the panels after delivery basedupon its unilateral mistake in pricing, are supported by the testimony and documentary evidencepresented at trial. Accordingly, there is no basis to disturb the Supreme Court's dismissal of theplaintiff's fifth through eighth causes of action. The record also supports the Supreme Court'sfinding that the plaintiff repudiated its agreement to supply Donaldson Acoustics with certainceiling tiles, thus forcing Donaldson Acoustics to purchase the tiles from another supplier at ahigher price, and warranting an award of cover damages (see Fertico Belgium v PhosphateChems. Export Assn., 70 NY2d 76, 82 [1987]; Walck Bros. AG. Serv. v Hillock, 5 AD3d 1058, 1060 [2004];Toto We're Home v Beaverhome.Com, 301 AD2d 643, 644 [2003]). Therefore, there isalso no basis to disturb the award of the principal sum of [*2]$27,477.64 to Donaldson Acoustics on its counterclaim. Skelos,J.P., Dickerson, Eng and Leventhal, JJ., concur. [Prior Case History: 28 Misc 3d 1237(A),2010 NY Slip Op 51624(U).]