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