Kolmar Ams., Inc. v Marathon Petroleum Co., LLC, 2011 NY Slip Op 00096 [80 AD3d 463]

January 11, 2011

Appellate Division, First Department

— [*1]

Kelley Drye & Warren LLP, New York (James E. Nealon of counsel), for appellant.

Blank Rome LLP, New York (John D. Kimball of counsel), for respondent.

Judgment, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered October 27, 2010, which, after a nonjury trial, dismissed the complaint and counterclaim, unanimously affirmed, with costs.

In this breach of contract action, Kolmar alleged that petroleum it purchased from Marathon failed to conform to previously agreed-upon quality specifications. The court providently exercised its discretion in finding that plaintiff failed to put forth a foundation to introduce into evidence the independent reports indicating the quality of the petroleum tested at Marathon’s refinery ( see Montes v New York City Tr. Auth. , 46 AD3d 121 [2007]). The court also providently exercised its discretion in denying Kolmar’s midtrial motion to call a witness to lay a foundation for the reports ( see e.g. Mayorga v Jocarl & Ron Co. , 41 AD3d 132 , 134 [2007], appeal dismissed 9 NY3d 996 [2007]).

In any event, the trial testimony and documentary evidence established that there was no meeting of the minds between the parties as to essential contract terms regarding, inter alia, the quality and quantity of the petroleum being purchased ( see Kleinschmidt Div. of SCM Corp. v Futuronics Corp. , 41 NY2d 972 [1977]). Therefore, the proffered evidence would not have changed the result of the trial ( see Division Seven, Inc. v HP Bldrs. Corp. , 58 AD3d 796 [2009]). Concur—Andrias, J.P., Friedman, Catterson, Renwick and DeGrasse, JJ..