By: Daily Record Staff//July 19, 2011
By: Daily Record Staff//July 19, 2011//
Appellate Division, Fourth Department
Seneca Pipe & Paving Co. Inc. v. South Seneca Central School District et al.
Appealed from Supreme Court, Seneca County
Background: The plaintiff sought damages that arose from an alleged breach of contract by the defendant construction company. The court had previously granted the plaintiff’s cross-motion for summary judgment on the issue of liability and ordered a trial on damages. The plaintiff appealed from an order determining that it failed to prove its damages and the denial of a post-trial motion that sought leave to amend the complaint to add a cause of action for an account stated
Ruling: The court unanimously affirmed as the plaintiff failed to prove the amount paid to a subcontractor to perform the work in the original contract. The plaintiff had also failed to prove how much material was actually used to do the work. The plaintiff’s second contention failed as there was no agreed upon account, which is an essential element for an account stated.
Kevin M. Cox of the Camardo Law Firm PC for the plaintiff-appellant