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Supreme Court, Appellate Term, First Department. Amerigard Alarm & Security Corporation, Plaintiff-Respondent, v. Judson Realty LLC, Defendant-Appellant. No. 570387/02. Feb. 25, 2003

2003 WL 1088232 (N.Y.Sup.App.Term), 2003 N.Y. Slip Op. 50602(U)
 
Supreme Court, Appellate Term,
First Department.
AMERIGARD ALARM & SECURITY CORPORATION, Plaintiff-Respondent,
v.
JUDSON REALTY LLC, Defendant-Appellant.
No. 570387/02.
Feb. 25, 2003.

Defendant appeals from a judgment of the Civil Court, New York County dated September 18, 2001 after a nonjury trial (George Postel, J.H.O.) awarding plaintiff a recovery in the principal amount of $3,334.10, plus interest and disbursements.

Present: Hon. WILLIAM P. McCOOE, J.P., Hon. WILLIAM J. DAVIS and Hon. MARTIN SCHOENFELD, Justices.


PER CURIAM.
*1 Judgment dated September 18, 2001 (George Postel, J.H.O.) modified by reducing plaintiff's recovery to the principal sum of $1,060.85; as modified, judgment affirmed, without costs.
Plaintiff commenced this action to recover the balance claimed to be due under a written contract with defendant to install a security alarm system at defendant's commercial premises in Manhattan and to provide central station monitoring service. In addition to the purchase price for the alarm system, monitoring service was to be billed monthly over a five-year term. The system could not be made operational on the intended date of installation because defendant did not have an available telephone line to the monitoring station located in Huntington Station, Long Island. The weight of the evidence, fairly construed, shows that plaintiff failed to afford defendant a reasonable opportunity to secure a 516 line and refused to return to the job site absent full payment in advance. Since plaintiff's actions frustrated the completion of the contract, it is not entitled to contract damages in the amount of the monthly monitoring fees and its recovery is more properly limited to the balance due on the equipment retained by defendant. Exercising our authority to make the findings of fact which should have been made by the trial court in this nonjury case 672, 674), we have modified the judgment accordingly.
This constitutes the decision and order of the court.
N.Y.Sup.App.Term,2003.
Amerigard Alarm & Security Corp. v. Judson Realty LLC.
2003 WL 1088232 (N.Y.Sup.App.Term), 2003 N.Y. Slip Op. 50602(U)
END OF DOCUMENT