Opinion
July 5, 1966
In an action to recover for work, labor and services, defendant appeals from: (1) an order of the Supreme Court, Richmond County, entered March 24, 1965, which in part granted plaintiff's motion for summary judgment; and (2) the judgment entered April 2, 1965 pursuant thereto in plaintiff's favor for $26,883.36. Order modified so as to provide (1) that plaintiff's motion is granted to the extent that judgment be entered for $19,641.13, with costs and with interest to be computed upon each item of damage from the date it was incurred or upon the total sum of such damages from a single reasonable intermediate date, and (2) that the action shall proceed not only with respect to the issue of plaintiff's claim for additional compensation of $1,048.49 (severed in the court below), but also with respect to additional charges on previous bills of $1,250.54, and defendant's offset and counterclaim of $3,884.40. As so modified, order affirmed, without costs, and action remitted for the entry on notice of an amended judgment accordingly. We agree that plaintiff's claim for additional compensation of $1,048.49 must be tried. In our opinion, however, the motion papers also disclose the existence of triable issues of fact as to plaintiff's claim for "additional charges on previous bills" in the amount of $1,250.54 and defendant's offset and counterclaim in the amount of $3,884.40. Since the items of damage occurred at various times, interest on the total claim should not have been computed from November 15, 1963 (CPLR 5001, subd. [b]). Ughetta, Acting P.J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.