Barleo Homes, Inc. v. Tudomawr Corp.

In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Orange County (Fitzer, J.H.O.), entered February 10, 1993, which, after a nonjury trial, granted the defendant’s motion pursuant to CPLR 4401 for judgment during trial dismissing the complaint for failure to establish a prima facie case.

Ordered that the order is affirmed, with costs.

The plaintiff, a developer, contracted with the defendant for the paving of a road. The contract provided that the defendant was to use approximately 36,000 square feet of "Blacktop Cold Mix ZVz…