| Nevco Contr. Inc. v R.P. Brennan Gen. Contrs. & Bldrs.,Inc. |
| 2016 NY Slip Op 03832 [139 AD3d 515] |
| May 17, 2016 |
| Appellate Division, First Department |
[*1]
| Nevco Contracting Inc., Appellant, v R.P.Brennan General Contractors & Builders, Inc., Also Known as Brennan Operating,Inc., Doing Business as Brennan General Contractors, Respondent. (And a Third-PartyAction.) |
Joseph P. Dineen, Garden City, for appellant.
Foreht Associates, LLP, New York (Stephen R. Foreht of counsel), forrespondent.
Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered October14, 2015, which denied plaintiff's motion for summary judgment on its breach of contractcause of action seeking the principal amount of $46,960, plus interest pursuant to CPLR5001 (a), unanimously reversed, on the law, with costs, the motion granted, and thematter remanded for further proceedings regarding interest in accordance with thisdecision.
Plaintiff subcontractor made a prima facie showing of the existence of the parties'agreement, its performance thereunder, and defendant general contractor's failure toperform, resulting in harm to plaintiff (see Harris v Seward Park Hous. Corp., 79 AD3d 425, 426[1st Dept 2010]). Plaintiff established the amount due from defendant by submitting anemail exchange between the parties, reflecting their agreement on the amount due, anddefendant's representation that payment would be made as soon as it received paymentfrom third-party defendant owner.
The "pay-when-paid" provision in the subcontract is not an effective conditionprecedent to defendant's duty to perform, since such provisions are "void andunenforceable as contrary to public policy" (West-Fair Elec. Contrs. v Aetna Cas.& Sur. Co., 87 NY2d 148, 158 [1995]; Hugh O'Kane Elec. Co., LLC v MasTec N. Am., Inc., 19 AD3d126, 126 [1st Dept 2005]). Moreover, defendant did not dispute the evidence thatthe parties had reached agreement on the amount due to plaintiff, and failed to submitany admissible evidence sufficient to preclude summary judgment. Although defendant'spresident submitted an affidavit stating that the owner has not paid defendant because theowner is dissatisfied with plaintiff's work, his statement is supported only by an unswornspreadsheet which, as hearsay, is alone insufficient to defeat summary judgment (Rugova v Davis, 112 AD3d404, 404-405 [1st Dept 2013]). In any event, the spreadsheet shows only that theowner had rejected a demand for payment, but does not indicate why the demand wasrejected.
Because the parties on appeal have not addressed the date from which interest shallbe computed pursuant to CPLR 5001, we remand for further proceedings and adetermination [*2]regarding interest (see Peachy vRosenzweig, 215 AD2d 301 [1st Dept 1995]; see also Delulio v 320-57Corp., 99 AD2d 253 [1st Dept 1984]). Upon such determination, the Clerk shallcalculate the amount of interest and enter judgment accordingly (see CPLR 5001[c]). Concur—Mazzarelli, J.P., Moskowitz, Manzanet-Daniels and Gesmer,JJ.