Lakeview Lawn & Landscape, Inc. v. Intra-State Contracting Corp.

Judgment unanimously affirmed with costs. Memorandum: Defendants appeal from a judgment, entered following a bench trial, awarding plaintiff $44,952.46 for goods and services supplied by it pursuant to a subcontract with defendant Intra-State Contracting Corporation (Intra-State). Supreme Court properly concluded that plaintiff was not contractually bound to procure a maintenance bond guaranteeing its work. The subcontract does not refer to a maintenance bond, nor does it expressly incorporate any such provision of the underlying prime contract. The court also properly concluded that defendant must pay the balance due on plaintiff’s invoices, appropriately crediting evidence that plaintiff installed all of the sod it delivered to the site and billed only for sod actually installed. With regard to the conflicting measurements of the sod, we find no basis to disturb the court’s determination to credit plaintiffs evidence over the testimony of defendants’ surveyor (see, Executive Park W. I v Jung, 224 AD2d 990, 991, lv denied 88 NY2d 803). (Appeal from Judgment of Supreme Court, Monroe County, Stander, J. — Contract.) Present — Pigott, Jr., P. J., Green, Pine, Kehoe and Balio, JJ.