Warren Brothers Co. v. Fidelity & Deposit Co. of Maryland

Judgment unanimously modified, and, as modified, affirmed, with costs to plaintiff against Memphis Construction, Inc. Memorandum: The contention by Memphis Construction, Inc., that the court committed reversible error in its charge with respect to the prime contract and subcontract RD3 relating to Memphis’ fourth counterclaim for damages for plaintiff’s delay was not preserved for review. We do not find that the alleged error justifies reversal in the interest of justice (see Pagnella v Action for a Better Community, 57 AD2d 1076; 4 Weinstein-Korn-Miller, NY Civ Prac, par 4017.09). The court erred in awarding prejudgment interest in the sum of $8,626.16 as against Fidelity & Deposit Company of Maryland with respect to plaintiff’s recovery in the sum of $34,889.82 on its fourth cause of action for damages occasioned by the delay by Memphis Construction, Inc. (Muscolino v Keppel, 17 AD2d 776, affd 13 NY2d 693), and the judgment as to Fidelity & Deposit is modified to delete such amount of interest. (Appeals from judgment of Onondaga Supreme Court — breach of contract.) Present — Cardamone, J. P., Schnepp, Callahan, Witmer and Moule, JJ.