Filed Date: 2/22/2011
Status: Precedential
Modified Date: 11/1/2024
In an action, inter alia, to recover damages for breach of contract, the defendant appeals from (1) an order of the Supreme Court, Queens County (Kitzes, J.), entered October 7, 2009, which denied its motion for summary judgment dismissing the complaint, and (2) a judgment of the same court entered March 5, 2010, which, after a nonjury trial, is in favor of the plaintiff and against it in the principal sum of $18,712.40.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, and the complaint is dismissed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review on the appeal from the judgment (see CPLR 5501 [a] [1]).
“Upon review of a determination rendered after a nonjury trial, this Court’s authority is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account in a close case the fact that the
The plaintiffs contention that it was excused from further performance because of the defendant’s nonpayment is without merit (see generally Waters v Glasheen, 103 AD2d 1043 [1984]).
The plaintiff failed to establish that the alleged additional work it performed was not covered by the subject contract (see Ludemann Elec., Inc. v Dickran, 74 AD3d 1155, 1156 [2010]; Savin Bros. v State of New York, 62 AD2d 511, 516 [1978], affd 47 NY2d 934 [1979]).
In light of our determination, the remaining contentions have been rendered academic. Angiolillo, J.P., Belen, Chambers and Roman, JJ., concur.