Supreme Sec. Sys., Ltd v Atlas Switch Co., Inc. (2013 NY Slip Op 50463(U))

Supreme Sec. Sys., Ltd v Atlas Switch Co., Inc.

2013 NY Slip Op 50463(U) [39 Misc 3d 130(A)]

Decided on March 21, 2013

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Supreme Security Systems, Ltd, Appellant, —

against

Atlas Switch Co., Inc., Respondent.

Appeal from a judgment of the District Court of Nassau County, First District (Donald H. Birnbaum, J.), entered October 11, 2011. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is modified by reinstating so much of the complaint as sought to recover upon a cause of action for breach of contract and as sought attorney's fees; as so modified, the judgment is affirmed, without costs, and the matter is remitted to the District Court for a new trial limited to those portions of the complaint.

The complaint in this action seeks to recover damages under theories of breach of contract and conversion, and demands an award of attorney's fees. After a nonjury trial, the parties entered into a stipulation in which they agreed to withdraw the cause of action for conversion. Subsequently, the District Court issued a decision which erroneously stated that the parties had settled the breach of contract claim, found that plaintiff was not entitled to recover upon its conversion cause of action, and declined to award plaintiff attorney's fees on the ground that this relief was tied to the cause of action for breach of contract. A judgment was entered which dismissed the complaint in its entirety.

It is clear from the record that the parties stipulated to the withdrawal of the cause of [*2]action for conversion, but did not settle the breach of contract claim. Accordingly, the judgment is modified by reinstating so much of the complaint as sought to recover upon the cause of action for breach of contract and as demanded attorney's fees. Since the trial judge is no longer in office, the case is remitted to the District Court for a new trial (cf. Judiciary Law § 21; People v Cameron, 194 AD2d 438, 438 [1993]) before a different judge (see People v Ozarowski, 87 Misc 2d 607, 610 [Sup Ct, Westchester County 1976]) limited to so much of the complaint as sought to recover upon the breach of contract cause of action and as sought attorney's fees.