Trinity Associates, Inc. v. Telesector Resources Group, Inc.

Judgment, Supreme Court, New York County (Richard B. Lowe, III, J.), entered May 24, 2007, awarding plaintiff the principal sum of $1,251,895, and bringing up for review an order, same court and Justice, entered May 10, 2007, to the extent it denied in part defendant’s motion to set aside the jury’s verdict, affirmed, with costs. Appeal from the order dismissed, without costs, as subsumed in the appeal from the judgment. Defendant contends that as a matter of law, it was permitted [281] to suspend the parties’ contract, and plaintiffs February 14, 2001 letter could not have modified the contract because it was not signed by both parties. Both of these arguments were raised unsuccessfully in a prior appeal (38 AD3d 282 [2007]), and thus will not be entertained on this appeal (see Sharp v Stavisky, 242 AD2d 447 [1997], Iv dismissed 91 NY2d 956 [1998]). In order to overturn the jury’s verdict as based on insufficient evidence, we would have to find that it was “utterly irrational” (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). At trial, evidence was presented that defendant had sent plaintiff a letter on January 22, 2001, stating it wanted to retain the emergency repair services provided by plaintiff, and “If there is a cost associated with retaining this service please let us know.” Plaintiff responded on February 14, 2001, that the total cost would be “$291,782 plus job expense per year.” Defendant then utilized plaintiff’s continuing emergency services without interposing any objection to the price quoted. The jury could have reasoned that plaintiff’s February 14, 2001 letter set forth its yearly fee, and that defendant accepted this offer without objection and subsequently ordered continuation of plaintiffs emergency services (see John William Costello Assoc. v Standard Metals Corp., 99 AD2d 227, 231 [1984], appeal dismissed 62 NY2d 942 [1984]). Furthermore, the jury could have reasonably calculated its verdict on damages, based on the price quoted plus annual job expense, which would be consistent with the period alleged of breach, four years and 106 days. We have considered defendant’s remaining arguments and find them unavailing. Concur—Lippman, P.J., Nardelli and Acosta, JJ.