Hirani Construction Corp. v. New York Surety Co.

—In an action to *509recover under a payment bond, the defendant appeals from a judgment of the Supreme Court, Nassau County (Kutner, J.), entered April 19, 1997, which, upon an order of the same court dated March 10,1997, granting the plaintiffs motion for partial summary judgment, is in favor of the plaintiff and against it in the principal sum of $42,580.01. The defendant’s notice of appeal from the order is deemed a premature notice of appeal from the judgment (see, CPLR 5520 [c]).

Ordered that the judgment is reversed, on the law, with costs, the order is vacated, and the motion is denied.

The plaintiff has failed to make a prima facie showing of entitlement to judgment as a matter of law (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). In support of its motion for summary judgment, the plaintiff submitted an affidavit by its president, Sarita Hirani, who claimed that pursuant to the subject subcontract, the plaintiff is owed $42,580.01. She attempted to document the sum owed by using a schedule which specified seven subsections of work to be performed (e.g., pile caps, floor beams, outside sidewalk) with corresponding fees. However, since Ms. Hirani offered no proof that this schedule of fees was accurate or that this schedule had been approved by the general contractor, her subsequent calculations using this schedule to determine the amount due are not reliable. Accordingly, the plaintiffs motion for partial summary judgment should have been denied.