Levinson & Santoro Electric Corp. v American Home Assur. Co NY Slip Op 31245(U) May 28, 2013 Supreme Court, Queens County Docket Number:

Transcription

1 Levinson & Santoro Electric Corp. v American Home Assur. Co NY Slip Op 31245(U) May 28, 2013 Supreme Court, Queens County Docket Number: 21837/09 Judge: David Elliot Republished from New York State Unified Court System's E-Courts Service. Search E-Courts ( for any additional information on this case. This opinion is uncorrected and not selected for official publication.

2 [* 1] MEMORANDUM SUPREME COURT : QUEENS COUNTY IA PART 14 LEVINSON & SANTORO ELECTRIC CORP., INDEX NO /09 Plaintiff, MOTION SEQ. NO against - AMERICAN HOME ASSURANCE COMPANY, BY: ELLIOT, J. INC., MORGANTI NATIONAL, INC., THE MORGANTI GROUP, INC., and BOVIS LEND MOTION CAL. NO. LEASE LMB, INC., as successor in interest to LEHRER MCGOVERN BOVIS, INC., DATE: MAY 28, 2013 Defendants. Defendant Morganti National, Inc., defendant Morganti Group, Inc., and defendant Bovis Lend Lease LMB, Inc., have moved for a judgment notwithstanding a jury verdict or, in the alternative, for a new trial. I. The Amended Verified Complaint The amended verified complaint makes the following allegations: Plaintiff Levinson & Santoro Electric Corp. (L&S), is a corporation having its th principal place of business at Street, College Point, New York. Morganti National, Inc. (MNI), Morganti Incorporated, Morganti International, Inc., and the Morganti Group, Inc., corporations organized under the laws of the State of Connecticut (collectively Morganti), function as a single entity.

3 [* 2] In 1993, MNI formed a joint venture with non-party Trataros Construction, Inc. (the Morganti joint venture), which entered into a contract (the prime contract) with The United States Department of Justice, Federal Bureau of Prisons (FBOP), whereby the joint venture agreed to act as the general contractor for the construction of the Metropolitan Detention Center to be built in Brooklyn, New York. On or about October 28, 1993, the Morganti joint venture entered into a written subcontract with L&S whereby the latter agreed to perform electrical work, contained in the prime contract, for a price of $ 11,800, During the course of construction, FBOP directed the Morganti joint venture to do additional work outside the scope of the prime contract, and the latter, in turn, directed L&S to do additional electric work outside the scope of the subcontract. FBOP gave the additional work items specific Modification Numbers (MODs). L&S submitted to the Morganti joint venture Contractor Proposed Changes (CPCs) for the additional work done outside the scope of the subcontract. The Morganti joint venture, in turn, submitted the CPCs to FBOP. FBOP paid the Morganti joint venture and American Home Assurance Company, Inc. (AHAC), its surety, for the extra electrical work performed by L&S, but the joint venture failed to pay L&S for the work done for certain MODs and CPCs. On or about April 2, 1996, upon the dissolution of the joint venture, MNI received an assignment of all rights, title, and interest in the prime contract. As the construction continued, FBOP directed MNI to perform work outside of the scope of the 2

4 [* 3] prime contract, and MNI, in turn, directed L&S to do electrical work outside of the scope of the subcontract. L&S submitted CPCs to MNI, which the latter forwarded to FBOP. Although FBOP paid MNI for the extra work done by L&S, MNI never paid L&S for some of the CPCs and MODs. On April 30, 1997, FBOP declared MNI to be in default of the prime contract, which it then terminated. Nevertheless, L&S continued to perform its work under the subcontract, and, in doing so, the subcontractor incurred impact and delay costs for which it has not been compensated. MNI and its surety began an action against FBOP in the United States Court of Federal Claims, and they reached a settlement which included L&S s unpaid CPCs and MODs. On or about August 20, 1997, AHAC hired defendant Bovis Lend Lease LMB, Inc. (Bovis), to act as the construction manager for the completion of the project, but MNI actually continued to manage and supervise the construction through Bovis. On or about December 15, 1997, L&S entered into a written subcontract with Bovis whereby the former agreed to complete the electrical work required for the project. On or about November 5, 1998, Bovis and L&S executed Change Order Number 7 (CO 7) whereby L&S agreed to accept a fixed amount for overhead and profit, and L&S signed CO 7 in reliance upon false representations that MNI had not been paid for certain MODs and CPCs. The project encountered delays from January 12, 1999 to August 30, 1999, and L&S incurred additional costs in the amount of $ 1,599, beyond those covered by CO 7. 3

5 [* 4] On or about May 12, 2003, MNI and L&S entered into a liquidating agreement concerning the latter s unpaid MODs, CPCs, and delay claims. The CPCs amounted to $ 3,823,748.86, the MODs amounted to $ 2,580,842.05, and the total claim, which included other items, amounted to $ 6,456, In order to pressure L&S into signing the liquidating agreement, Bovis, at the instigation of MNI and its surety, withheld funds from the subcontractor which it had received from FBOP for electrical work. The liquidating agreement falsely stated that FBOP had not paid the Morganti joint venture or MNI for the subcontractor s CPCs and MODs, whereas FBOP had paid for some of these items. MNI promised to advance L&S $ 850, on the latter s CPCs and MODs, and the subcontractor, in difficulty because of the delay in payment, desperately needed the advance to avoid going out of business. Out of desperation, L&S agreed to accept the advance and to equally divide with MNI any recovery from FBOP based on the subcontractor s CPCs and MODs in excess of $ 850, MNI made the $850, advance with funds already received from FBOP for L&S s work. After L&S signed the liquidating agreement, MNI entered into a global settlement with FBOP concerning the subcontractor s CPCs and MODs. MNI did not settle these items in good faith, as required by the liquidating agreement, because it accepted only $ 10,038, in exchange for a promise by FBOP to waive its claims against the general contractor for liquidated damages, deficiencies, omissions, and other matters. MNI received $ 16,401, under the global settlement (a payment of $ 10,038, plus the release 4

6 [* 5] of claims having a value of $ 6,362,701.00), but by letter dated January 5, 2007, MNI informed L&S that the former owed the latter a maximum of $ 86, The scope of the liquidating agreement did not include the electrical subcontractor s increased impact costs and damages incurred after Morganti s default during the period from April 30, 1997 to August 20, 1997 amounting to $ 250, Nevertheless, MNI settled and released the subcontractor s claim for increased impact costs and damages incurred during this period. The delay in the completion of the project from January 12, 1999 to August 30, 1999 caused L& S to incur additional costs amounting to $1,599, Although L&S did not receive compensation for these additional costs, MNI released FBOP from liability from them. The first cause of action seeks damages of $ 6,456, for fraud and breach of contract in connection with the liquidating agreement. The second cause of action seeks a judgment declaring that the liquidating agreement is null and void. The third cause of action seeks damages in the sum of $ 250, for the improper release of the subcontractor s claim for the period from April 30,1997 to August 20, The fourth cause of action seeks damages in the amount of $ 1,599, for the delay costs incurred from January 12, 1999 to August 30, The fifth cause of action seeks damages in the amount of $ 6,456, from the Morganti Group on the basis that this defendant converted monies from the FBOP settlement that should have gone first to its affiliate and then to L&S. The sixth cause of 5

7 [* 6] action seeks damages in the amount of $ 6,456, from the Morganti Group on the ground that this defendant became unjustly enriched when it received monies from the FBOP settlement that should have gone first to an affiliate and then to L&S. II. The Damages Awarded by the Jury The jury awarded damages on each cause of action as follows: First Cause of Action (MNI) Fraud in the Inducement $500, Material Breach/Liquidating Agreement $1,500, Third Cause of Action (MNI) Breach of Contract/ Interim Claim $500, Fourth Cause of Action (MNI) Breach of Contract/Post Termination Delay Claim $1,000, Fifth Cause of Action (Morganti Group) Conversion $1,500, Sixth Cause of Action (Morganti Group) Unjust Enrichment $500,

8 [* 7] III. The Legal Standards CPLR 4404, Post-trial motion for judgment and new trial, provides in relevant part: (a) Motion after trial where jury required. After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law (see Cohen v Hallmark Cards, 45 NY2d 493 [1978]; Spano v Bertocci, 299 AD2d 335 [2002]). On a post-verdict motion for judgment as a matter of law, a trial court must determine from the evidence presented at trial whether any rational basis exists for the verdict reached by the jury (see Cohen v Hallmark Cards, supra). Before directing a judgment notwithstanding a verdict, the court must conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial (id. at 499; see Mirand v City of New York, 84 NY2d 44 [1994]; Sow v Arias, 21 AD3d 317 [2005]). CPLR 4404 also provides in relevant part: (a) Motion after trial where jury required. After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court.. may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence (see White v New York City Tr. Auth., 40 AD3d 297 [2007]; Edwards v Manhattan & Bronx Surface Tr. Operating Auth., 252 AD2d 410 [1998]; Nicastro v Park, 113 AD2d 129 [1985]). Whether 7

9 [* 8] a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors (Nicastro v Park, supra, at 133, citing Cohen v Hallmark Cards, Inc., supra; Davison v New York City Tr. Auth., 63 AD3d 871 [2009]). It is well settled that a jury s determination should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence (Anderson v Grimes, 270 AD2d 371 [2000]; see Taal v Krobatsch, 281 AD2d 621 [2001]; Nicastro v Park, supra). The test is whether the evidence so preponderated in favor of the movant that the verdict could not have been reached under any fair interpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744 [1995]; Martin v New York City Transit Authority, 48 AD3d 522 [2008]; Preston v Young, 239 AD2d 729 [1997]). In disposing of the instant motion, the court is first required to determine whether there is sufficient evidence to support the verdict on rational grounds, and, if so, the court is then required to determine whether the evidence so preponderated in favor of the defendants that the jury could not have reached its verdict on any fair interpretation of the evidence (Grassi v Ulrich, 87 NY2d 954 [1996]; State of New York v Derrick B., 68 AD3d 1124 [2009]). A verdict that is supported by legally sufficient evidence may nonetheless be set aside as contrary to the weight of the evidence, and a new trial may be ordered, if the evidence so preponderates in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence (State of New York v Derrick B., supra, at1126). 8

10 [* 9] IV. Discussion A. The First Cause of Action In regard to the first cause of action, which is based on the liquidating agreement, the jury awarded the plaintiff $500, for fraud in the inducement and $1,500, for a material breach of the liquidating agreement. Contrary to the argument made by the defendants, a party may join a cause of action for fraud with another cause of action based on breach of contract (see Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954 [1986] [upholding a jury verdict awarding damages for breach of contract and for fraud in the inducement since the measure of damages recoverable for being fraudulently induced to enter into a contract which otherwise would not have been made is indemnity for the loss suffered through that inducement [internal quotation marks omitted]; RKB Enterprises Inc. v Ernst & Young, 182 AD2d 971 [1992]). The evidence adduced at the trial concerning fraud in the inducement was not merely redundant of the evidence concerning breach of contract (see Gizzi v Hall, 300 AD2d 879 [2002]). The elements of a cause of action or defense alleging fraud in the inducement are representation of a material existing fact, falsity, scienter, reliance, and injury (see Urstadt Biddle Properties, Inc. v. Excelsior Realty Corp., 65 AD3d 1135 [2009]; Chopp v Welbourne & Purdy Agency, Inc., 135 AD2d 958 [1987]). There is sufficient evidence in the record to support each of these elements. 9

11 [* 10] During the trial, Fred Levinson, L & S s president, testified that MNI falsely represented to the subcontractor that certain claims had not been paid by FBOP and that the subcontractor had relied on this representation when it signed the liquidating agreement. L&S sustained damage because it relinquished half of its claims against FBOP and agreed to discontinue an action against MNI s surety. The plaintiff also introduced documentary evidence which showed that MNI misrepresented to the subcontractor that there were only paid change orders amounting to $ 199, while MNI s own internal documents showed an additional $ 498, in paid change orders. In denying MNI s motion for a directed verdict, this court ruled during the trial that the record contained legally sufficient evidence to support the cause of action for fraudulent inducement. This court stated: After consideration, the court finds MNI is not entitled to [a] directed verdict on this cause of action. Evidence was presented that MNI had been paid on certain CPCs and MODs, that despite same, it represented to plaintiff that it had not, thereby inducing plaintiff into entering the Liquidating Agreement. A reasonable jury could conclude that reliance on the fact that MNI had not yet been paid for these outstanding claims induced plaintiff into signing the Liquidating Agreement and that without such misrepresentations, plaintiff may not have relinquished its right to recover whatever outstanding CPCs or MODs it had pursuant to the work it did under the original subcontract. 10

12 [* 11] MNI argues that it introduced documentary evidence showing that no misrepresentations were made; however, it was the jury s function to resolve the conflicts in the evidence (see Gartech Elec. Contracting Corp. v Coastal Elec. Const. Corp., 66 AD3d 463 [2009]; Manne v Museum of Modern Art, 39 AD3d 368 [2007]; Natale v Rockefeller Center Management Corp., 224 AD2d 194 [1996]). The jury s finding that there was fraud in the inducement is amply supported by evidence in the record, and, in view of the evidence concerning the amount of claims that the plaintiff relinquished, the jury s finding that the plaintiff sustained $ 500, in damages is also amply supported by evidence in the record. The court also sees no basis for disturbing the jury s rejection of MNI s affirmative defenses of waiver and ratification. There is ample evidence in the record that the plaintiff was not fully aware of the status of its claims, and, moreover, the liquidating agreement states that all of the plaintiff s claims within its scope were unpaid. Contrary to the arguments made by Morganti, there is legally sufficient evidence in the record to support a verdict that it materially breached the liquidating agreement in four different ways: First, MNI breached the liquidating agreement by not passing through all of the subcontractor s claims. MNI s former president, Theodore Catino, admitted that MNI submitted only $ 5,125, of the subcontractor s claims, not the $ 6,454, in claims that should have been submitted. The claims submitted did not match those shown in Exhibit A of the liquidating agreement. The liquidating agreement plainly states: Morganti shall submit to the FBOP for payment all of the L&S claims, which are more fully listed and 11

13 [* 12] described in Exhibit A attached to this Liquidating Agreement [totaling $6,454,705.00]. Further, both Catino and Scott Kowalski (whose firm represented MNI during negotiations) both admitted that MNI did not submit the subcontractor s post-termination delay claim for over $1,599, Second, MNI breached the liquidating agreement by not attempting to settle the claims of L&S in good faith. There is evidence in the record that, inter alia, MNI settled some of the claims of L&S for a percentage much lower than the former had accepted from FBOP in the past, and, in fact, had settled some of the subcontractor s claims for nothing at all. Third, MNI failed to pay to L&S the correct sum owed from the proceeds of the global settlement. The liquidating agreement provided that if FBOP did not allocate payment toward each of the subcontractor s claims on an individual basis, then L&S was to receive a percentage of the total amount awarded to MNI. MNI and AHAC received $20,201, under the global settlement in one form or another ($13,838, plus $6,362, in credit), and L&S did not receive the percentage due and owing under the liquidating agreement. Morganti computed the balance owed to the subcontractor as only $ 86,098.65, and Morganti failed to pay even this sum to the subcontractor. Fourth, MNI breached the liquidating agreement where it obligated MNI to consult with L&S and AIC prior to settling the L&S claims or any part of it. Levinson testified that MNI did not consult with the subcontractor before entering into the global settlement. It was the province of the jury to weigh any conflicting evidence on this point and to determine questions of credibility (see DiMarco v Custom C.A.S., Inc., AD3d, 2013 NY Slip Op [2013]). The court notes 12

14 [* 13] that, contrary to the argument made by MNI, there is ample evidence in the record from which the jury could find that each of these breaches was a material one (see Gorey v Allion Healthcare, Inc., 72 AD3d 640 [2010]). Moreover, there is ample evidence in the record from which a jury could conclude that L&S incurred damages as a result of MNI s breach of contract. MNI failed to present some of the subcontractor s claims to FBOP and settled others for a much lower percentage than the historical average and, in some instances, for nothing at all. Contrary to the arguments made by MNI, the jury s award of $ 1,500,00.00 in damages for breach of contract was rational and was not excessive. The liquidating agreement itself stated that L&S incurred substantial extra and additional costs amounting to $ 6,456, Pursuant to CO 7, L& S assigned to Bovis the first $ 1,500, received from FBOP for its MODs and CPCs. MNI argues that this assignment removes any basis for the jury s award of $1,500, to L&S for breach of the liquidating agreement. However, L&S demanded $6,456, in damages for its first cause of action, and there is ample evidence in the record from which the jury could conclude that L&S sustained damages in an amount that exceeded the sum assigned to Bovis. Moreover, there is also sufficient evidence in the record from which the jury could conclude that Bovis breached CO 7 by not presenting certain claims to FBOP and by not giving L&S an opportunity to review a decision not to pursue those claims. 13

15 [* 14] MNI further argues that it is entitled to a set off concerning two claims it had against L&S that it released in the liquidating agreement, the first, a claim for $1,042, accruing from a series of advances MNI made to the subcontractor, and the second, a claim for $11,980, in damages MNI is claimed to have suffered after the subcontractor allegedly repudiated certain of its contractual obligations. MNI argues that if the jury s finding of fraud is upheld, then the legal consequence is a return of the parties to the status quo ante. This argument has no merit because L&S sought to recover damages for fraud, not to rescind the liquidating agreement for fraud. [I]t is well settled that a defrauded party to a contract may elect to either disaffirm the contract by a prompt rescission or stand on the contract and thereafter maintain an action at law for damages attributable to the fraud. (Big Apple Car, Inc. v City of New York, 204 AD2d 109 [1994]). Even accepting MNI s argument that fraud returned the parties to the status quo ante, there is conflicting evidence in the record concerning whether MNI or L&S breached the subcontract, and it was the province of the jury to resolve the conflicting evidence, which it did on the basis of legally sufficient evidence. There is also evidence in the record that MNI, through Bovis, entered into a new subcontract with L&S, thereby acquiescing to the subcontractor s alleged breach. A party which acquiesces to a breach or repudiation of a contact loses his right to sue for damages (see Bercow v Damus, 5 AD3d 711 [2004]). 14

16 [* 15] B. The Second Cause of Action The second cause of action which is for a judgment declaring the liquidating agreement to be null and void, was not submitted to the jury. 1 C. The Third Cause of Action The third cause of action sought damages in the amount of $ 250, for additional costs incurred during the period from April 30, 1997 to August 20,1997. L&S sought its costs for overhead while it did not work on the job for the period between MNI s termination by FBOP in April 1997 and the subcontractor s recommencement of work pursuant to its new subcontract with Bovis. L&S also sought compensation for work done during this interim period to maintain the safety of the project. L&S proved at the trial that MNI did not present the delay claim to FBOP. The jury returned a verdict in the amount of $ 500, In its post trial memorandum, at page 52, the plaintiff stipulates to a reduction in the verdict on the third cause of action to $ 274, [sic]. MNI argues that there is no basis in the record for a finding that MNI agreed to present the claim for the interim period to FBOP. While it is true, as the court charged the jury, that the liquidating agreement did not cover the costs incurred during the interim period, there was ample evidence at the trial from which the jury could conclude that MNI otherwise agreed to submit the claim. There is testimonial and documentary evidence in the record 1. Though not discussed by the parties, it would appear that, in light of the jury s findings on the first cause of action, L&S has withdrawn its second cause of action. 15

17 [* 16] which establishes that L&S sent its delay claim to MNI by letter dated August 23, 2003 (dated after the liquidating agreement) using the language required by MNI. The record permits the inference that MNI, by its words and conduct, agreed to submit the delay claim to FBOP. Finally, despite the finding of the United States Court of Claims that MNI had been properly terminated, the jury could rationally and fairly conclude that FBOP would have paid on the delay claim in view of the fact that electrical work was required to maintain project safety. D. The Fourth Cause of Action The fourth cause of action alleges that MNI, its surety, and Bovis improperly settled and released a claim made by L&S for delay costs incurred during the period that ran from January 12, 1999 to August 30, The jury awarded $ 1,000, on a cause of action that sought $ 1,599, In its post trial memorandum, at page 56, the plaintiff stipulates to a reduction in the verdict on the fourth cause of action to $891, Contrary to the assertion made by MNI, there is sufficient evidence in the record, including a relevant clause in Rider A to the liquidating agreement, that MNI agreed to submit the subcontractor s post-termination delay claim to FBOP. MNI failed to submit the post-termination delay claim. MNI s defense that presentation of the post-termination delay claim would have violated the federal False Claims Act because there was no valid basis to assert a claim for compensable delay raised issues of fact and credibility for the jury to 16

18 [* 17] resolve, and the verdict need not be set aside for insufficient evidence. MNI waived issues pertaining to its right to receive compensation for overhead and profit by not raising them at the trial. MNI also waived issues pertaining to the federal government s payment of finance charges by not raising them before or during trial. E. The Fifth Cause of Action The fifth cause of action, which is for conversion, alleges that (1) MNI is not a going concern and did not hold any assets after 1999 and (2) the Morganti Group, not MNI, received payment from FBOP in the amount of $ 10,038, The jury awarded L&S $ 1,500, on this cause of action. Defendants argument in regard to the fifth cause of action is based on the erroneous premise that they have no liability toward the plaintiff on the first, third, and fourth causes of action. As found by the jury, and as confirmed by the court, the contrary is true. Moreover, there was sufficient evidence at the trial from which the jury could rationally find that FBOP made payments to the Morganti Group on some of L&S s claims and not to MNI with whom FBOP and L&S had contracted. Conversion is the unauthorized assumption and exercise of the right of ownership over property belonging to another to the exclusion of the owner's rights (see State v Seventh Regiment Fund, Inc., 98 NY2d 249, 259 [2002]). In regard to the fifth cause of action, the court charged the jury as follows: 17

19 [* 18] A person who receives possession of the property of another and thereafter, without authority intentionally exercises control over it in such a manner as to interfere with the other s right of possession has converted that property and it liable for its value. The burden of proof is on Levinson to show that it was owed specifically identifiable funds received by Morganti Group from the proceeds of the so-called global settlement. If you find that Levinson was entitled to specifically identifiable funds received by the Morganti Group and you find that Morganti Group was not Morganti National s creditor in an amount greater than the proceeds of the global settlement then I instruct you to find for Levinson in the amount to which Levinson was entitled. Otherwise, I instruct you to find for Morganti Group. A charge given without objection or further request to charge is the law of the case (see Barry v Manglass, 55 NY2d 803 [1981]; Passantino v Consolidated Edison Co. of New York, Inc., 54 NY2d 840 [1981]; Killon v Parrotta, 98 AD3d 828 [2012]). The evidence before the jury was sufficient for the jury to find, consistently with the court s charge, that the Morganti Group had converted funds belonging to L&S. F. The Sixth Cause of Action The sixth cause of action is for unjust enrichment, and it rests on essentially the same allegations as the fifth. A cause of action for unjust enrichment arises when one party 18

20 [* 19] possesses money or obtains a benefit that in equity and good conscience they should not have obtained or possessed because it rightfully belongs to another (Mente v Wenzel, 178 AD2d 705 [1991]; see Strong v Strong, 277 AD2d 533 [2000]). The jury returned a verdict of $ 500, against the Morganti Group. The defendants argument in regard to the sixth cause of action is based on the erroneous premise that they have no liability toward the plaintiff on the first, third, and fourth causes of action. As found by the jury, and as confirmed by the court, the contrary is true. The evidence at the trial established that FBOP sent the global settlement payments in the amount of $ 10,038, and the remaining contract balance in excess of $ 3,000, to Morganti Group and that those sums included compensation for work done by L&S. The Morganti Group had no contract with FBOP or with L&S, and the jury could rationally find that the Morganti Group received money that rightfully belonged to L&S. G. The Consistency of the Verdicts The defendants argue that the fifth and sixth causes of action rest on similar facts and similar theories and that a verdict on the fifth in the amount of $1,500, and a verdict in the sixth in the amount of $500, are inconsistent. Verdicts are inconsistent only when a verdict on one claim necessarily negates an element of another cause of action (Barry v Manglass, supra, at 805). In the case at bar, the defendants did not raise the issue of inconsistent verdicts at the trial, and this failure precludes them from raising the issue in 19

21 [* 20] this post-trial motion (see id., at 806; Alvarez v Beth Abraham Health Servs., 101 AD3d 647 [2012]). In any event, the elements of the sixth cause of action permitted the jury to make an award for unjust enrichment, which would not have otherwise compensated plaintiff under its award in the fifth cause of action. This is particularly significant in connection with the jury s award for fraud in the inducement. H. The Counterclaim Made by Bovis The jury returned a verdict in favor of L&S in regard to the counterclaim made by Bovis which was based on CO 7. The jury could rationally find from the evidence adduced at trial that Bovis did not suffer any damages from a purported breach of CO 7 and/or that Bovis itself breached CO 7. V. Conclusion The court has determined that the jury verdicts are supported by legally sufficient evidence and are not contrary to the weight of the evidence. The jury verdicts will not be set aside, except as to the third cause of action where the plaintiff has stipulated to a reduction to $274,764.06, and the fourth cause of action where the plaintiff has stipulated to a reduction to $ 891,

22 [* 21] VI. Disposition The motion is granted as to the third cause of action to the extent that the verdict is reduced to $274,764.06, and as to the fourth case of action to the extent that the verdict is reduced to $ 891, The motion is otherwise denied. Settle order. J.S.C. 21