Third-party defendant, construction company, moves, pursuant to CPLR 4404, to set aside the jury verdict and dismiss the action against it, or, alternatively, to set aside the jury verdict and order a new trial. After trial, the jury returned a verdict in favor of third-party plaintiff, a municipal corporation, for $1.1 million on its breach of contract cause of action. The parties, essentially, were contesting responsibility for a pre-trial settlement in the amount of $1.1 million reached in the main action, where a construction worker lost an eye as a result of an accident during the course of his assignment on a project at one of third-party plaintiff's sites. The parties stipulated that the settlement in the main action had been entered into and that the $1.1 million had been paid by third-party plaintiff to the main plaintiff.

Third-party plaintiff's witnesses testified at trial that third-party defendant had agreed to provide insurance for the employees working on third-party plaintiff's sites, that third-party defendant's insurance broker had issued a certificate of insurance listing the third-party plaintiff as an additional insured to third-party defendant, that third-party plaintiff had specifically requested such a certificate, that for multiple years before the accident certificates of insurance stating that third-party plaintiff was an additional insured under third-party defendant's general liability insurance policy had been provided to third-party plaintiff, and that, for over a decade, third-party defendant had provided third-party defendant labor proposals with "trade rates" that included an insurance item. Third-party defendant's witnesses testified at trial that there was no agreement to procure insurance for third-party plaintiff. The parties provided conflicting testimony regarding the meaning of the phrase "insurance term" in the labor proposals.

Movant has failed to establish that the jury verdict here siding with third-party plaintiff on the question of contractual intent was "against the weight of the evidence" (CPLR 4404 [a]). Notably, the Appellate Division, on an earlier appeal in this action, unanimously reversed a decision by the lower court (per Freed, J.) granting summary judgment dismissing the third-party complaint (Wasek v. New York City Health & Hosps. Corp., 123 AD3d 493). Observing that "the question of contractual intent is largely one of fact" and that "disputes over the terms of an oral contract often turn on issues of credibility," the Appellate Division found that the record before it precluded summary judgment (id.). The factual record considered by the Appellate Division is in every essential way the same factual record that was evaluated by the jury herein. The jury's determination of the contractual intent was based on its collective assessment of the facts as presented and based on its collective assessment of the credibility of witnesses and other evidence — and was well within its province.

Third-party plaintiff cross-moves for an award of pre-judgment interest in this breach of contract action, pursuant to CPLR 5001. "A prevailing plaintiff," in an action of this kind, "is entitled to such interest as of right" (Delulio v 320-57 Corp., 99 AD2d 253). Third-party plaintiff, moreover, is entitled to an award of pre-judgment interest at the statutory rate (J. D'Addario & Co., Inc. v Embassy Indus., Inc., 20 NY3d 113), and such award should run from the date of the breach (Village of Ilion v County of Herkimer, 23 NY3d 812). Third-party plaintiff offers documentary proof in its cross-motion papers that establishes that the date on which it made payment on the settlement of the main action was March 31, 2010. Thus, third-party plaintiff is entitled to an award of pre-judgment interest at the statutory rate from March 31, 2010.

Accordingly, it is hereby

ORDERED that the motion by third-party defendant, pursuant to CPLR 4404, to set aside the jury verdict and dismiss the action against it, or, alternatively, to set aside the jury verdict and order a new trial, is DENIED; and it is further

ORDERED that third-party plaintiff's cross-motion for an order directing entry of judgment against third-party defendant in the amount of $1,100,000.00 with interest from March 31, 2010, pursuant to CPLR 5001, is GRANTED; and, it is therefore

ORDERED that the Clerk enter judgment in favor of third-party plaintiff NEW YORK CITY HEALTH & HOSPITALS CORPORATION and against CONSTRUCTION FORCE SERVICES, INC., in the amount of $1,100,000.00, with pre-judgment interest at the statutory rate from March 31, 2010, together with costs and disbursements, as taxed, in accordance with the jury verdict.