| Staten Is. N.Y. CVS, Inc. v Gordon Retail Dev., LLC |
| 2008 NY Slip Op 09982 [57 AD3d 760] |
| December 16, 2008 |
| Appellate Division, Second Department |
| Staten Island New York CVS, Inc.,Appellant-Respondent, v Gordon Retail Development, LLC, et al., Defendants andThird-Party Plaintiffs-Respondents-Appellants, and Nave, Newell & Stampfl, Ltd., et al.,Respondents-Appellants. Future Tech Consultants of New York, Inc., Third-PartyDefendant-Respondent, et al., Third-Party Defendants. (Action No. 1.) Staten Island New York CVS,Inc., et al., Appellants, v MXW Holding Corp., Respondent. (Action No.2.) |
—[*1] O'Connell and Aronowitz, Albany, N.Y. (Jeffrey J. Sherrin and William F. Berglund of counsel),for defendants third-party plaintiffs-respondents-appellants in action No. 1 and respondent in actionNo. 2. Newman Fitch Altheim Myers, P.C., New York, N.Y. (Charles W. Kreines and Martin I. Nagelof counsel), for defendant second third-party plaintiff-respondent-appellant in action No. 1. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Richard E. Lerner [*2]and Glenn J. Fuerth of counsel), for defendants-respondents-appellants inaction No. 1. Porzio, Bromberg & Newman, P.C., New York, N.Y. (Allan I. Young of counsel), for third-partydefendant-respondent in action No. 1.
In related actions to recover damages for breach of contract, breach of warranty, and negligence,Staten Island New York CVS, Inc., the plaintiff in action No. 1 and a plaintiff in action No. 2, andCVS Pharmacy, Inc., a plaintiff in action No. 2, appeal, as limited by their brief, from so much of anorder of the Supreme Court, Richmond County (McMahon, J.), dated September 7, 2007, as grantedthose branches of the motion of the defendants Gordon Retail Development, LLC, MPG ConstructionCorp., and MPG Construction, LLP, the cross motion of the defendant Virga Contractors, Inc., andthe separate cross motion of the defendants Nave, Newell & Stampfl, Ltd., and Nave Newell, Inc.,which were for summary judgment dismissing the causes of action to recover damages for breach ofcontract and breach of warranty insofar as asserted against each of them in Action No. 1 and grantedthe motion of the defendant MXW Holding Corp. for summary judgment dismissing the complaint inaction No. 2, the defendants Gordon Retail Development, LLC, MPG Construction Corp., and MPGConstruction, LLC, cross-appeal, as limited by their notice of appeal and brief, from so much of thesame order as denied that branch of their motion which was for summary judgment dismissing the causeof action to recover damages for negligence insofar as asserted against them in action No. 1, thedefendant Virga Commercial Contractors, Inc., separately cross-appeals, as limited by its brief, fromso much of the same order as denied that branch of its cross motion which was for summary judgmentdismissing the cause of action to recover damages for negligence insofar as asserted against it in actionNo. 1, and the defendants Nave, Newell & Stampfl, Ltd., and Nave Newell, Inc., separatelycross-appeal, as limited by their notice of cross appeal and brief, from so much of the same order asdenied those branches of their separate cross motion which were for summary judgment dismissing thecause of action to recover damages for negligence insofar as asserted against them in action No. 1 andgranted that branch of the separate cross motion of the third-party defendant Future Tech Consultantsof New York, Inc., which was for summary judgment dismissing the cross claim for contribution insofaras asserted against it by the defendants Nave, Newell & Stampfl, Ltd., and Nave Newell, Inc., inaction No. 1.
Ordered that the appeal by CVS Pharmacy, Inc., a plaintiff in action No. 2, from so much of theorder as granted those branches of the motion of the defendants Gordon Retail Development, LLC,MPG Construction Corp., and MPG Construction, LLP, the cross motion of the defendant VirgaContractors, Inc., and the separate cross motion of the defendants Nave, Newell & Stampfl, Ltd., andNave Newell, Inc., which were for summary judgment dismissing the causes of action to recoverdamages for breach of contract and breach of warranty insofar as asserted against each of them inaction No. 1 is dismissed, as it is not aggrieved by those portions of the order (see CPLR5511); and it is further,
Ordered that the order is modified, on the law and the facts, (1) by deleting the provisions thereofgranting those branches of the motion of the defendants Gordon Retail Development, LLC, MPGConstruction Corp., and MPG Construction, LLC, the cross motion of the defendants VirgaCommercial Contractors, Inc., and the separate cross motion of the defendants Nave, Newell &Stampfl, Ltd., and Nave Newell, Inc., which were for summary judgment dismissing the causes ofaction to recover damages for breach of contract insofar as asserted against each of them in action No.1 and substituting therefor provisions denying those branches of the motion, cross motion, and separatecross motion, (2) by deleting the provisions thereof granting those branches of the motion [*3]of the defendants Gordon Retail Development, LLC, MPG ConstructionCorp., and MPG Construction, LLC, and the cross motion of the defendant Virga CommercialContractors, Inc., which were for summary judgment dismissing the cause of action to recover damagesfor breach of warranty insofar as asserted against each of them in action No. 1 and substituting thereforprovisions denying those branches of the motion and the cross motion, (3) by deleting the provisionsthereof denying those branches of the motion of the defendants Gordon Retail Development, LLC,MPG Construction Corp., and MPG Construction, LLC, and the cross motion of the defendant VirgaCommercial Contractors, Inc., which were for summary judgment dismissing the cause of action torecover damages for negligence insofar as asserted against each of them and substituting thereforprovisions granting those branches of the motion and the cross motion, and (4) by deleting the provisionthereof granting that branch of the cross motion of the third-party defendant Future Tech Consultants ofNew York, Inc., which was for summary judgment dismissing the cross claim for contribution insofar asasserted against it by the defendants Nave, Newell & Stampfl, Ltd., and Nave Newell, Inc., in actionNo. 1 and substituting therefor a provision denying that branch of the cross motion; as so modified, theorder is affirmed insofar as reviewed on the appeal by CVS Pharmacy, Inc., insofar as appealed fromby the plaintiff Staten Island New York CVS, Inc., and insofar as cross-appealed from by thedefendants Gordon Retail Development, LLC, MPG Construction Corp., and MPG Construction,LLC, and separately cross-appealed from by the defendant Virga Commercial Contractors, Inc., andthe defendants Nave, Newell & Stampfl, Ltd., and Nave Newell, Inc., without costs or disbursements.
The Supreme Court should have denied that branch of the motion of the defendants Gordon RetailDevelopment, LLC, MPG Construction Corp., and MPG Construction, LLC (hereinafter the Gordondefendants), which was for summary judgment dismissing the causes of action to recover damages forbreach of contract insofar as asserted against them in action No. 1. The Gordon defendants failed toestablish their entitlement to judgment as a matter of law in connection with that cause of action sincetheir submissions revealed the existence of triable issues of fact with respect to the existence of a validcontract (see Mega Contr., Inc. v InsuranceCorp. of N.Y., 37 AD3d 669, 670 [2007]).
Upon the showing by the defendant Virga Commercial Contractors, Inc. (hereinafter Virga), thatno contract existed between it and the plaintiff Staten Island New York CVS, Inc. (hereinafter SINYCVS), SINY CVS raised a triable issue of fact as to whether it was an intended third-party beneficiaryof the contract between Virga and the defendants MPG Construction Corp., and MPG Construction,LLC (see Dormitory Auth. of State of N.Y. v Baker, Jr. of N.Y., 218 AD2d 515 [1995];Facilities Dev. Corp. v Miletta, 180 AD2d 97, 100-101 [1992]; Key Intl. Mfg. vMorse/Diesel, Inc., 142 AD2d 448, 455 [1988]).
The gravamen of the negligence causes of action asserted by SINY CVS against the Gordondefendants and Virga in action No. 1 is that the work that was performed under the contracts wasperformed in a less than skillful and workmanlike manner. Such causes of action sound in breach ofcontract, not negligence (see Panasuk v ViolaPark Realty, LLC, 41 AD3d 804, 805 [2007]; Kopec v Hempstead Gardens, 264AD2d 714, 715-716 [1999]; Zulinski v Merkley Bros., 247 AD2d 613, 614 [1998]). SINYCVS's allegations of negligence against those defendants are "merely a restatement, albeit in slightlydifferent language, of the . . . contractual obligations asserted in the cause[s] of action forbreach of contract" against those defendants (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70NY2d 382, 390 [1987]).[*4]
The Supreme Court erred in granting that branch of the crossmotion of the defendants Nave, Newell & Stampfl, Ltd., and Nave Newell, Inc., which was forsummary judgment dismissing the cause of action to recover damages for breach of contract insofar asasserted against them in action No. 1 on the ground that no contract existed between them and SINYCVS. To the contrary, those defendants conceded in their motion papers that such a contract existed.
The Supreme Court, however, properly denied that branch of the cross motion of the defendantsNave, Newell & Stampfl, Ltd., and Nave Newell, Inc., which was for summary judgment dismissingthe cause of action to recover damages for negligence insofar as asserted against them in action No. 1.In opposition to the prima facie showing of Nave, Newell & Stampfl, Ltd., and Nave Newell, Inc., oftheir entitlement to judgment as a matter of law in connection with that cause of action, SINY CVSraised a triable issue of fact as to whether there was a departure from accepted standards of care andwhether that departure was a proximate cause of the injury (see Alvarez v Prospect Hosp., 68NY2d 320, 323 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]).
The Supreme Court erred in granting that branch of the cross motion of the third-party defendantFuture Tech Consultants of New York, Inc., which was for summary judgment dismissing the crossclaim for contribution insofar as asserted against it by the defendants Nave, Newell & Stampfl, Ltd.,and Nave Newell, Inc., in action No. 1. Pursuant to CPLR 1401, "two or more persons who aresubject to liability for damages for the same . . . injury to property . . . mayclaim contribution among them" (Plemmenouv Arvanitakis, 39 AD3d 612, 614 [2007]). The injury allegedly caused by the allegednegligence of Nave, Newell & Stampfl, Ltd., and Nave Newell, Inc., is the same injury as the oneallegedly caused by the alleged negligence of the third-party defendant Future Tech Consultants of NewYork, Inc. (see Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599,603 [1988]).
The plaintiffs' remaining contentions regarding action No. 2, commenced against MXW HoldingCorp., are without merit.
The defendants' remaining arguments regarding damages for lost profits are without merit (seeCifone v City of Poughkeepsie, 234 AD2d 331, 332 [1996]). Fisher, J.P., Florio, Carni andChambers, JJ., concur.