        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

520
CA 10-01952
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND GREEN, JJ.


SENECA PIPE & PAVING CO., INC.,
PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

SOUTH SENECA CENTRAL SCHOOL DISTRICT,
ET AL., DEFENDANTS,
AND FREDERICO CONSTRUCTION COMPANY,
DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


CAMARDO LAW FIRM, P.C., AUBURN (KEVIN M. COX OF COUNSEL), FOR
PLAINTIFF-APPELLANT.


     Appeal from an order of the Supreme Court, Seneca County (David
Michael Barry, J.), entered July 9, 2009 in a breach of contract
action. The order denied damages to plaintiff.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages
arising from the alleged breach by defendant Frederico Construction
Company (Frederico) of its agreement with plaintiff, pursuant to which
plaintiff was to remove concrete supports and debris from a hole in
which certain buried storage tanks had been removed from a
construction site, fill in the hole, and grade the area surrounding
it. Plaintiff was also the principal site work contractor on the same
project and, pursuant to its contract with defendant South Seneca
Central School District (School District), performed similar fill and
grading work on the area encompassing the buried tanks. Supreme Court
previously granted plaintiff’s cross motion for partial summary
judgment on the issue of liability against Frederico and ordered a
trial on damages, noting that “the determination of damages at trial
shall take [into] account [the] excavation and backfill [work that]
plaintiff was required to perform under [its] site work contract” with
the School District. In appeal No. 1, plaintiff appeals from an order
determining, following a bench trial, that it failed to prove its
damages and, in appeal No. 2, plaintiff appeals from an order denying
its post-trial motion seeking leave to amend the second amended
complaint to add a cause of action for an account stated.

     Plaintiff contends in appeal No. 1 that the court erred in
determining that it failed to prove the damages that it sustained from
                                 -2-                           520
                                                         CA 10-01952

Frederico’s breach of its agreement with plaintiff. We reject that
contention. “ ‘On a bench trial, the decision of the fact-finding
court should not be disturbed upon appeal unless it is obvious that
the court’s conclusions could not be reached under any fair
interpretation of the evidence’ ” (Treat v Wegmans Food Mkts., Inc.,
46 AD3d 1403, 1404; see Thoreson v Penthouse Intl., 80 NY2d 490, 495,
rearg denied 81 NY2d 835). At the trial on damages, plaintiff’s
principal testified that plaintiff hired a subcontractor to remove the
concrete supports for the storage tanks, but plaintiff failed to
submit any evidence establishing the amount that plaintiff paid to the
subcontractor to perform that work. Similarly, as the court
specifically noted in its order directing the instant trial on
damages, plaintiff was paid to fill and grade the same area pursuant
to its own contract with the School District. At trial, however,
plaintiff established the amount of material that it trucked into the
area but failed to differentiate between the material that was
necessitated by the contract with the School District and the material
that was required solely to complete the agreement with Frederico.
Consequently, the court’s determination that plaintiff failed to prove
its damages from Frederico’s breach of its agreement with plaintiff is
supported by a fair interpretation of the evidence.

     Contrary to plaintiff’s further contention, the court properly
denied its post-trial motion seeking leave to amend the second amended
complaint to add a cause of action for an account stated inasmuch as
the proposed cause of action is plainly without merit (see generally
Barrows v Alexander, 78 AD3d 1693). “An account stated represents an
agreement between the parties reflecting an amount due on a prior
transaction . . . An essential element of an account stated is an
agreement with respect to the amount of the balance due” (Cameron
Eng’g & Assoc., LLP v JMS Architect & Planner, P.C., 75 AD3d 488,
489). Thus, “[w]here either no account has been presented or there is
any dispute regarding the correctness of the account, the cause of
action fails” (M & A Constr. Corp. v McTague, 21 AD3d 610, 611-612).
Here, plaintiff concedes that Frederico asked for a break-down of one
of the invoices that plaintiff sent to Frederico for payment on their
agreement. Plaintiff also submitted evidence establishing that
Frederico paid parts of one invoice related to other dealings with
plaintiff but declined to pay the part of that invoice that is
relevant here. Because the evidence presented at trial establishes
that there was a dispute regarding the amount due, the court “properly
determined that the plaintiff failed to establish the requisite
elements for recovery on a theory of [an] account stated” (Ludemann
Elec., Inc. v Dickran, 74 AD3d 1155, 1156; see generally Hull v City
of N. Tonawanda, 6 AD3d 1142, 1142-1143; Erdman Anthony & Assoc. v
Barkstrom, 298 AD2d 981).




Entered:   April 29, 2011                       Patricia L. Morgan
                                                Clerk of the Court
