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

709
CA 14-01676
PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.


KOVALSKY-CARR ELECTRIC SUPPLY CO., INC.,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

HARTFORD CASUALTY INSURANCE COMPANY AND
EASTCOAST ELECTRIC, LLC, DEFENDANTS-APPELLANTS.
(APPEAL NO. 1.)


ADAMS BELL ADAMS, P.C., ROCHESTER (ANTHONY J. ADAMS, JR., OF COUNSEL),
FOR DEFENDANTS-APPELLANTS.

RELIN, GOLDSTEIN & CRANE LLP, ROCHESTER, D.J. & J.A. CIRANDO, ESQS.,
SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Matthew A. Rosenbaum, J.), entered December 18, 2013. The judgment
awarded plaintiff damages in the principal amount of $70,460.98.

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

     Memorandum: Plaintiff commenced this action seeking, inter alia,
to recover sums allegedly remaining due pursuant to an agreement with
defendant EastCoast Electric, LLC (EastCoast). The State University
Construction Fund hired EastCoast as the prime contractor for a
construction project (SUCF project), and EastCoast entered into an
agreement with plaintiff pursuant to which plaintiff supplied
materials for the SUCF project, and EastCoast obtained a labor and
material bond from defendant Hartford Casualty Insurance Company.

     In appeal No. 1, defendants appeal from an order that, inter
alia, granted plaintiff’s motion for partial summary judgment on its
first cause of action and denied their cross motion for leave to amend
the answer. We note at the outset that the order was subsumed in a
judgment that was subsequently entered and, while the appeal properly
lies from the judgment, we exercise our discretion to treat the notice
of appeal as valid and deem the appeal to be from the judgment (see
CPLR 5520 [c]; Hendryx v Johnson Boys Ford-Mercury, 309 AD2d 1260,
1260). In appeal No. 2, defendants appeal from an order that granted
plaintiff’s motion seeking, inter alia, to dismiss the answer with
counterclaims and denied their cross motion to consolidate this action
with another pending action commenced by plaintiff against EastCoast.
                                 -2-                           709
                                                         CA 14-01676

     We conclude in appeal No. 1 that Supreme Court properly granted
plaintiff’s motion for partial summary judgment on its first cause of
action. Plaintiff established its entitlement to judgment by
submitting the documents comprising its agreement with EastCoast along
with evidence establishing that EastCoast failed to make the payments
required by the terms of that agreement (see Deere & Co. v M.P. Jones
Cos., Inc. [appeal No. 1], 93 AD3d 1208, 1208). Defendants failed to
raise a triable issue of fact in opposition to the motion (see
Resetarits Constr. Corp. v Elizabeth Pierce Olmsted, M.D. Ctr. for the
Visually Impaired [appeal No. 2], 118 AD3d 1454, 1455). We further
conclude in appeal No. 1 that the court properly denied defendants’
cross motion for leave to amend their answer inasmuch as the proposed
amendment is lacking in merit (see Pink v Ricci, 100 AD3d 1446, 1448-
1449).

     In appeal No. 2, we reject defendants’ contention that the court
erred in denying their cross motion to consolidate this action with
another pending action commenced by plaintiff against EastCoast. It
is not possible to determine from the submissions in support of the
cross motion whether the actions raise “a common question of law or
fact” warranting consolidation (CPLR 602 [a]). We also reject
defendants’ contention that the court erred in granting that part of
plaintiff’s motion to dismiss the second counterclaim, which seeks
attorney’s fees incurred in the instant action pursuant to State
Finance Law § 137 (4) (c). Inasmuch as plaintiff prevailed on its
first cause of action, it cannot be said that plaintiff’s “claim is
without substantial basis in fact or law” (id.). We agree with
defendants, however, that the court erred in granting plaintiff’s
motion to the extent that it sought dismissal of the first
counterclaim. That counterclaim alleges that plaintiff is liable for
backcharges for incomplete or incorrect labor or materials provided by
plaintiff to EastCoast on the SUCF project and on two additional
projects. Plaintiff failed to establish its entitlement to judgment
with respect to that counterclaim insofar as it relates to those two
additional projects (see New York Univ. v Cliff Tower, LLC, 107 AD3d
649, 650). We therefore modify the order in appeal No. 2 accordingly.




Entered:   July 10, 2015                        Frances E. Cafarell
                                                Clerk of the Court
