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NAB Construction Corp. v. Consolidated Edison Co. of New York, Inc.

Appellate Division of the Supreme Court of New York, First Department
Sep 23, 1997
242 A.D.2d 480 (N.Y. App. Div. 1997)

Opinion

September 23, 1997

Appeal from Supreme Court, New York County (Herman Cahn, J.).


Issues of fact exist as to whether defendant acted reasonably to mitigate its damages, including when defendant first became aware of plaintiff's nonperformance of the contract, and, once aware, whether its method of mitigation was reasonable ( see, Bernstein v. Freudman, 180 A.D.2d 420). Defendant does not demonstrate or even allege prejudice or surprise by the requested amendment (CPLR 3025 [b]; Fahey v. County of Ontario, 44 N.Y.2d 934), and it is of no consequence that plaintiff raised the unpleaded defense for the first time to defeat summary judgment ( see, Denburg v. Parker Chapin Flattau Klimpl, 213 A.D.2d 297; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:10, at 318).

Concur — Sullivan J.P., Ellerin, Nardelli, Williams and Andrias, JJ.


Summaries of

NAB Construction Corp. v. Consolidated Edison Co. of New York, Inc.

Appellate Division of the Supreme Court of New York, First Department
Sep 23, 1997
242 A.D.2d 480 (N.Y. App. Div. 1997)
Case details for

NAB Construction Corp. v. Consolidated Edison Co. of New York, Inc.

Case Details

Full title:NAB CONSTRUCTION CORP., Respondent, v. CONSOLIDATED EDISON COMPANY OF NEW…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Sep 23, 1997

Citations

242 A.D.2d 480 (N.Y. App. Div. 1997)
662 N.Y.S.2d 471

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