Jefferson Heights Quarry, Inc. v. Fort Pike Associates

—Order unanimously modified on the law and as modified affirmed without costs and judgment ordered in accordance with the following Memorandum: Plaintiff entered into a contract with defendant PRP Construction, Inc. (PRP) for the sale of "large base and cap stone” to be used in the construction of a breakwater. Defendant Fort Pike Associates was the property owner and defendant Harmer-Hill General Contractors, Inc. (Harmer-Hill) was the subcontractor. Plaintiff commenced this action seeking payment for stone accepted by defendants, totalling $35,340.55, and defendants PRP and Fort Pike Associates counterclaimed, asserting that plaintiff breached the contract by delivering stone smaller than that required by the contract. After a trial, at which PRP agreed to assume any liability found against Harmer-Hill, the court denied relief to any party. That was error. Defendants accepted the stone and took control of it by using it to build the breakwater; defen 973 dants therefore owe plaintiff the contract price (UCC 2-606 [1]; 2-607 [1]; see, Orbis Co. v Rivera, 140 AD2d 679, 680; Zappala & Co. v Pyramid Co., 81 AD2d 983, lv denied 55 NY2d 603). Because defendants failed to perfect their appeal, we do not reach their arguments concerning their counterclaims (see, Hecht v City of New York, 60 NY2d 57). We order that judgment be entered in favor of plaintiff in the amount of $35,340.55 plus interest in accordance with the terms of the contract until judgment is entered, at which time interest shall be computed at the statutory rate (CPLR 5003, 5004; see, Marine Mgt. v Seco Mgt., 176 AD2d 252, 253, affd 80 NY2d 886). (Appeal from Order of Supreme Court, Jefferson County, Gilbert, J. — Breach of Contract.) Present — Callahan, J. P., Pine, Lawton, Boomer and Davis, JJ.