

Shamrock Materials, LLC v Impact Envtl. Eng'g, PLLC (2017 NY Slip Op 03032)





Shamrock Materials, LLC v Impact Envtl. Eng'g, PLLC


2017 NY Slip Op 03032


Decided on April 19, 2017


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 19, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

CHERYL E. CHAMBERS, J.P.
L. PRISCILLA HALL
JOSEPH J. MALTESE
VALERIE BRATHWAITE NELSON, JJ.


2014-11836
 (Index No. 101671/12)

[*1]Shamrock Materials, LLC, respondent, 
vImpact Environmental Engineering, PLLC, doing business as Impact Environmental, et al., appellants.


Spizz & Cooper, Mineola, NY (Harvey W. Spizz of counsel), for appellants.
James K. O'Halloran, Staten Island, NY (Valerie Camacho of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for breach of contract, the defendants appeal, as limited by their brief, from stated portions of a judgment of the Supreme Court, Richmond County (Minardo, J.), dated September 29, 2014, which, upon a jury verdict and upon the denial of their motions pursuant to CPLR 4401 for judgment as a matter of law, is in favor of the plaintiff and against them in the principal sum of $547,278.61.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
In 2010, the plaintiff entered into a contract with the defendants for the plaintiff to remove, and load onto barges, excavated material from a construction project. The plaintiff subsequently commenced this action to recover damages for breach of contract, alleging that the defendants had failed to pay the full amount owed to the plaintiff. After a jury trial and the denial of the defendants' motions pursuant to CPLR 4401 for judgment as a matter of law, judgment was entered in favor of the plaintiff.
The defendants' contention that they were entitled to judgment as a matter of law pursuant to CPLR 4401 dismissing the cause of action to recover payments related to barges 2b through 55, and 61 and 62, because the plaintiff executed waivers of liens is without merit. The evidence at trial failed to establish, as a matter of law, that the plaintiff waived its claim to recover these payments (see Penava Mech. Corp. v Afgo Mech. Servs., Inc., 71 AD3d 493, 495).
The defendants' remaining contentions are without merit.
CHAMBERS, J.P., HALL, MALTESE and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


