Spa Steel Products, Inc. v. Pizzeria

Casey, J. Appeal from an order and judgment of the Supreme Court (Plumadore, J.), entered February 8, 1990 in Saratoga County, upon a decision of the court in favor of plaintiff, without a jury. At issue on this appeal is whether there is sufficient evidence in the record to support Supreme Court’s order and judgment in favor of plaintiff upon its cause of action to recover damages for defendant’s breach of its oral promise to pay for steel which, in reliance upon defendant’s promise, plaintiff fabricated and delivered to a construction site owned by the father of defendant’s owners. Plaintiff presented proof that defendant is a restaurant doing business as Capri Pizzeria in the Village of Lake George, Warren County, and that Roberto Mastrantoni and his brother Rocco are the sole owners of the business. Plaintiff’s agent testified at trial that he placed a telephone call to the telephone number for defendant’s business location and spoke with a "Mr. Mastrantoni”, who agreed to pay for the materials and provided the name of a local bank officer as a credit reference. Plaintiff’s agent telephoned the bank officer, who verified the financial standing of defendant’s business. Based upon this evidence, it is our view that a question of fact was presented as to whether plaintiff’s agent spoke to one of the brothers who owned the business and, if so, whether that owner agreed to have the business pay for the materials to be delivered by plaintiff. Resolution of this issue depends largely upon the credibility of the witnesses and we see no basis for disturbing Supreme Court’s assessment of the witnesses’ credibility (see, Town of Ulster v Massa, 144 AD2d 726, 727-728, lv denied 75 NY2d 707). Order and judgment affirmed, with costs. Mahoney, P. J., Casey and Yesawich, Jr., JJ., concur.