INTERNATIONAL EXTERIOR FABRICATORS, LLC, APPELLANT-res, v. DECOPLAST, INC. RESPONDENTS-ap, EAST COAST WALL, LTD., RESPONDENT def — (INDEX NO. 16809/08)In an action, inter alia, to recover damages for fraud, the plaintiff appeals from so much of an amended judgment of the Supreme Court, Nassau County (DeStefano, J.), dated July 3, 2013, as, upon, inter alia, the granting of that branch of the motion of the defendant East Coast Wall, Ltd., which was pursuant to CPLR 4401 for judgment as a matter of law dismissing the cause of action to recover damages for fraud insofar as asserted against it, made at the close of the plaintiff’s case, and a decision of the same court (Warshawsky, J.), dated October 25, 2011, made after a nonjury trial, is in favor of the defendant East Coast Wall, Ltd., and against it dismissing the complaint insofar as asserted against that defendant and awarding that defendant the principal sum of $114,795 on its counterclaim to recover damages for breach of contract, and the defendants Decoplast Inc., Frank DiStefano, and Danielle Destadio cross-appeal from so much of the same judgment as is in favor of the plaintiff and against them jointly and severally in the principal sum of $744,045.57.
ORDERED that the amended judgment is modified, on the law, by deleting the provisions thereof dismissing the cause of action alleging fraud insofar as asserted against the defendant East Coast Wall, Ltd., and awarding that defendant the principal sum of $114,795 on its counterclaim to recover damages for breach of contract; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiff payable by the defendants Decoplast, Inc., Frank DiStefano, Danielle A. DeStadio, and East Coast Wall, Ltd., that branch of the motion of the defendant East Coast Wall, Ltd., which was pursuant to CPLR 4401 for judgment as a matter of law dismissing the cause of action to recover damages for fraud insofar as asserted against it is denied, that cause of action is reinstated against that defendant, and the matter is remitted to the Supreme Court, Nassau County, for a new trial on the cause of action to recover damages for fraud insofar as asserted against the defendant East Coast Wall, Ltd., and on that defendant’s counterclaim to recover damages for breach of contract, and for the entry of an appropriate second amended judgment thereafter.
