| Granite Broadway Dev. LLC v 1711 LLC |
| 2007 NY Slip Op 08120 [44 AD3d 594] |
| October 30, 2007 |
| Appellate Division, First Department |
| Granite Broadway Development LLC, Appellant, v 1711LLC, Respondent. |
—[*1] Bryan Cave LLP, New York City (Herbert Teitelbaum of counsel), for respondent.
Judgment, Supreme Court, New York County (Karla Moskowitz, J.), entered June 14, 2006,after a nonjury trial, awarding defendant liquidated damages, certain offset damages and specificperformance, unanimously modified, on the law, to the extent of vacating the offset damages forannual increases in defendant's purchase price prior to October 31, 2004, and otherwise affirmed,without costs.
Contrary to plaintiff's assertions, there is no blanket prohibition against a court ordering theequitable relief of specific performance in a case involving breach of a construction contract. Atmost, courts are vested with discretion to refuse such relief (see Matter of Grayson-RobinsonStores [Iris Constr. Corp.], 8 NY2d 133, 137-138 [1960]). Here, the court properly grantedboth liquidated damages and specific performance, as the legal and equitable remedies redressseparate injuries (see e.g. Karpinski v Ingrasci, 28 NY2d 45, 52-53 [1971]; Wirth &Hamid Fair Booking Inc. v Wirth, 265 NY 214, 222-223 [1934]). The liquidated damagesclause does not purport to extinguish defendant's rights or plaintiff's obligations under thecontract, and a provision extinguishing rights or obligations will not be implied absent clear andexpress language to that effect (Terminal Cent. v Modell & Co., 212 AD2d 213, 218-219[1995]). In fact, section 7 of the agreement expressly provides for the extinguishment ofdefendant's rights thereunder in the event of its own breach; no such extinguishment is providedfor under the liquidated damages clause (section 8) at issue here. Moreover, such a reading wouldbe harshly uneven as it would grant plaintiff all the benefits of the agreement, and eliminatedefendant's rights, upon plaintiff's breach (see Metropolitan Life Ins. Co. v Noble LowndesIntl., 84 NY2d 430, 438 [1994]).
Nor does the liquidated damages clause state or even imply that liquidated damages would bedefendant's sole remedy. "For there to be a complete bar to equitable relief there must besomething . . . such as explicit language in the contract that the liquidated damagesprovision was to be the sole remedy" (Rubinstein v Rubinstein, 23 NY2d 293, 298[1968]). Instead, the liquidated damages here address injuries caused by plaintiff's past delays, upto October 31, 2004.
However, the court's order to offset the 10% annual increases in defendant's purchase [*2]price must be modified to include only those increases followingOctober 31, 2004, since the liquidated damages provision covered the injuries for delays to thatpoint. Concur—Tom, J.P., Andrias, Marlow, Nardelli and McGuire, JJ.