TOP GRADE EXCAVATING NEW YORK INC. v. HDMI HOLDINGS LLC

Index No. 153811/16. Appeal No. 13795-13795A. Case Nos. 2020-00781, 2020-00785.

194 A.D.3d 505 (2021)

148 N.Y.S.3d 102

2021 NY Slip Op 03010

Top Grade Excavating New York Inc., Respondent, v. HDMI Holdings LLC et al., Defendants, and Airitan Management Corp., Appellant.

Appellate Division of the Supreme Court of New York, First Department.

Decided May 11, 2021.


Attorney(s) appearing for the Case

The Law Offices of Michael P. Berkley, P.C., Garden City ( Michael P. Berkley of counsel), for appellant.

Joseph P. Dineen , Garden City, for respondent.

Concur—Kern, J.P., González, Scarpulla, Mendez, JJ.


Plaintiff excavation subcontractor on a building project commenced this action alleging breach of contract against, among others, defendant general contractor Airitan Management Corp. for amounts allegedly due. After a nonjury trial, the court found in plaintiff's favor. Plaintiff's subcontract contained a unit price for breaking rock of $500 per cubic yard. The primary issue before this Court is whether the court properly determined how the quantity of rock broken by plaintiff...

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