Kiamos & Tooker, Inc. v. Zelis Florist, Inc.

Order and judgment (one paper), Supreme Court, New York County (Franklin Weissberg, J.), entered October 19, 1998, after a nonjury trial, in an action for goods sold and delivered, in favor of plaintiff and against defendants in the principal amount of $6,137.71, modified, on the facts, to increase the principal amount awarded to plaintiff to $36,137.71 plus interest, with the interest on the $30,000 by which we increase the principal award to run from February 21, 1996, and otherwise affirmed, with costs payable to plaintiff.

We are empowered to make the findings that the trial court should have made (DiBruno v Abrams, 208 AD2d 672, 674, lv denied 85 NY2d 804). We now find that there is no fair interpretation of the evidence to establish that defendant paid the debt in full.

Plaintiff’s credible evidence proved that defendants tendered $8,000 in payment. However, the evidence presented by defendants failed to prove their affirmative defense of payment of the balance. We disagree with the trial court’s evaluation of the documentary evidence, to wit, the' photocopy of the receipt that defendant offered as proof of payment in full of the outstanding account. Plaintiff’s driver testified that the handwritten entries on the copy were substantially different from those he wrote on the original. The document clearly appears to have been altered to reflect that defendant paid $38,000 rather than the $2,000 check and $6,000 cash payment that the driver received. Moreover, we find it beyond belief that defendants would tender the check and $36,000 in cash to the driver of plaintiffs delivery truck. Concur — Sullivan, J. P., Mazzarelli, Lerner and Rubin, JJ.