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