Opinion
12602 Index No. 651860/13 Case No. 2019-4617
12-10-2020
LEASING CONTROL INC., Plaintiff–Appellant, v. RED ROOF INNS, INC., Defendant–Respondent.
Platzer, Swergold, Levine, Goldberg, Katz & Jaslow, LLP, New York (Clifford A. Katz of counsel), for appellant. Lewis Brisbois Bisgaard & Smith LLP, New York (Brian Pete of counsel), for respondent.
Platzer, Swergold, Levine, Goldberg, Katz & Jaslow, LLP, New York (Clifford A. Katz of counsel), for appellant.
Lewis Brisbois Bisgaard & Smith LLP, New York (Brian Pete of counsel), for respondent.
Manzanet–Daniels, J.P., Mazzarelli, Gesmer, Moulton, Shulman, JJ.
Order, Supreme Court, New York County (Joel M. Cohen, J.), entered May 2, 2019, which, after a nonjury trial, found that plaintiff failed to prove its cause of action for breach of contract and directed the Clerk to enter judgment in defendant's favor, unanimously affirmed, with costs.
The trial court's finding that plaintiff failed to prove contractual performance and damages, which was largely based on credibility determinations, was supported by a fair interpretation of the admitted evidence ( Security Pac. Natl. Bank v. Evans , 175 A.D.3d 410, 411, 108 N.Y.S.3d 2 [1st Dept. 2019], appeal dismissed 34 N.Y.3d 1088, 116 N.Y.S.3d 187, 139 N.E.3d 845 [2020] ). Plaintiff called only one witness at trial, who had no actual knowledge of the services for which plaintiff was seeking payment and had no specific involvement with generating invoices. Given this testimony, and the numerous errors and duplications contained in the invoices, the trial court properly discounted the probative value of this body of evidence. Defendant's testimony that it did not receive the invoices further undermined plaintiff's case. Accordingly, the trial court correctly determined that plaintiff failed to establish that the work was performed (see GTF Mktg. v. Colonial Aluminum Sales , 66 N.Y.2d 965, 968, 498 N.Y.S.2d 786, 489 N.E.2d 755 [1985] ).
The trial court also correctly found that plaintiff failed to carry its burden to prove damages. Despite admitting to inaccuracies contained in the invoices, plaintiff did not provide corrections at trial. The trial court properly declined to consider a spreadsheet, offered for the first time with plaintiff's posttrial brief, that purported to summarize plaintiff's damages. The spreadsheet was not admissible and did not, in any event, reflect the evidence admitted at trial (see 135 E. 57th St., LLC v. 57th St Day Spa , 126 A.D.3d 471, 472, 2 N.Y.S.3d 789 [1st Dept. 2015] ).