Brooklyn & Queens Elevator Co. v. Excel Associates

In an action to foreclose a mechanic’s lien, defendant Excel Associates appeals from a resettled judgment of the Supreme Court, Nassau County (Roncallo, J.), entered May 31, 1984, which, after a nonjury trial and a ruling from the Bench dismissing appellant’s counterclaim to recover damages for breach of contract, awarded plaintiff the principal sum of $4,000.

Resettled judgment affirmed, with costs.

*631In a contract dated November 5, 1980, the terms of which were modified by a subsequent agreement dated March 31, 1981, plaintiff agreed to install and to repair certain elevator components in a building owned by appellant. On November 5, 1980, the parties also executed a separate contract in which plaintiff agreed to maintain the elevator. The installation and repair work was intended, in the language of the contract, to put the elevator "in good working condition”. Appellant contended at trial that plaintiff breached the contract by doing installation work which was incomplete and untimely, and that plaintiff did not place the elevator in good working condition. On appeal, appellant argues that the trial court erred in finding that plaintiff had not breached the contract. The trial court did not find appellant’s testimony credible. After according due deference to the trial court on matters of credibility (Barnet v Cannizzaro, 3 AD2d 745), our examination of the evidence adduced at trial establishes that the trial court’s findings are not against the weight of the credible evidence nor are they are contrary to law. Accordingly, the findings should not be disturbed (see, Conti v Henkel, 60 AD2d 678). Finally, having found that appellant failed to establish a breach of the contract by plaintiff, the trial court properly dismissed the counterclaim, which was predicated upon an alleged breach. Lazer, J. P., Bracken, Weinstein and Kunzeman, JJ., concur.