| Spectrum Painting Contrs., Inc. v Kreisler Borg Florman Gen. Constr.Co., Inc. |
| 2009 NY Slip Op 05764 [64 AD3d 565] |
| July 7, 2009 |
| Appellate Division, Second Department |
| Spectrum Painting Contractors, Inc., Plaintiff, v KreislerBorg Florman General Construction Co., Inc., et al., Respondents-Appellants, Miriam OsbornMemorial Home Association, Appellant-Respondent, and R & J Construction Corp. et al.,Respondents, et al., Defendants. (Action No. 1.) Frank & Lindy Plumbing & Heating, Inc.,Plaintiff, v Seaboard Surety Company et al., Defendants. (Action No. 2.) Old Castle Precast,Inc., Doing Business as Spancrete Northeast, Plaintiff, v Seaboard Surety Company et al.,Defendants. (Action No. 3.) Byram Concrete & Supply, Inc., Plaintiff, v Osborn et al.,Defendants. (Action No. 4.) Eastern Excavation, Inc., Plaintiff, v Seaboard Surety Company,Defendant. (Action No. 5.) Miriam Osborn Memorial Home Association, Respondent-Appellant,v Kreisler Borg Florman General Construction Co., Inc., Appellant-Respondent, et al.,Defendant. (Action No. 6.) Classico Building Maintenance, Inc., Plaintiff, v Kreisler BorgFlorman General Construction Co., Inc., Defendant. (Action No. 7.) |
—[*1] Thelen LLP, New York, N.Y. (Michael L. Chartan, Brian J. Markowitz, and Meghan D.Andry of counsel), for Kreisler Borg Florman General Construction Co., Inc.,defendant-respondent-appellant in action No. 1, defendant in action Nos. 2, 3, 4, and 7, andappellant-respondent in action No. 6, Skyline Steel Corp., defendant-respondent-appellant inaction No. 1, Eastern Excavation, Inc., defendant-respondent in action No. 1 and plaintiff inaction No. 5, MGC Stone Company, Inc., defendant-respondent in action No. 1, and Old CastlePrecast, Inc., doing business as Spancrete Northeast, defendant-respondent in action No. 1 andplaintiff in action No. 3. Steven G. Rubin & Associates, P.C., Melville, N.Y., for R & J Construction Corp.,defendant-respondent in action No. 1. Roseman, Beerman & Beerman, LLP, Lake Success, N.Y. (Stephen M. Roseman ofcounsel), for Acme Architectural Products, Inc., defendant-respondent in action No. 1. Welby, Brady & Greenblatt, LLP, White Plains, N.Y. (Geoffrey S. Pope of counsel), forFrank & Lindy Plumbing & Heating, Inc., defendant-respondent in action No. 1 and plaintiff inaction No. 2 and Solar Electrical Systems, Inc., and Nationwide Mechanical Contractors Corp.,defendants-respondents in action No. 1. Marcus, Gould & Sussman, LLP, White Plains, N.Y. (Kenneth J. Gould of counsel), for M.Gottfried, Inc., defendant-respondent in action No. 1. Noël F. Caraccio, PLLC, Mamaroneck, N.Y. (Michele A. Luzio of counsel), forMariano Cardillo & Sons, Inc., defendant-respondent in action No. 1. Alan G. Kraut, Garden City, N.Y. (Paula Schwartz Frome of counsel), for Mensch Mill &Lumber Corp., defendant-respondent in action No. 1. Elias C. Schwartz, Great Neck, N.Y. (Michelle Englander and Lisa Mevorach of counsel),for Navillus Contracting, Inc., sued herein as John Doe No. 1, defendant-respondent in actionNo. 1.
In seven related actions, inter alia, to recover damages for breach of contract, (1) [*2]Kreisler Borg Florman General Construction Co., Inc., appealsfrom so much of an order of the Supreme Court, Westchester County (Nicolai, J.), enteredJanuary 9, 2008, as denied that branch of its cross motion in action No. 6 which was forsummary judgment limiting the potential recovery of Miriam Osborn Memorial HomeAssociation against it in that action for delay damages to the sum of $350,000, and MiriamOsborn Memorial Home Association cross-appeals, as limited by its notice of appeal and brief,from so much of the same order as granted that branch of the cross motion of Kreisler BorgFlorman General Construction Co., Inc., in action No. 6 which was, in effect, for summaryjudgment dismissing the complaint insofar as asserted against it to the extent that the complaintsought to recover damages from Kreisler Borg Florman General Construction Co., Inc., in thataction in the amount of unreimbursed casualty and property damage remediation claimssubmitted by Miriam Osborn Memorial Home Association to its insurer, (2) Miriam OsbornMemorial Home Association separately appeals from a second order of the same court, alsoentered January 9, 2008, which denied its motion in action No. 6 for summary judgmentdismissing the counterclaim to recover damages for breach of contract asserted against it byKreisler Borg Florman General Construction Co., Inc., in that action and denied its motion inaction No. 1 for summary judgment dismissing the cross claim to foreclose a mechanic's lienasserted against it by Kreisler Borg Florman General Construction Co., Inc., in that action, (3)Miriam Osborn Memorial Home Association separately appeals from so much of a third order ofthe same court, also entered January 9, 2008, as denied those branches of its separate motion inaction No. 1 which were for summary judgment dismissing so much of the cross claim toforeclose a mechanic's lien asserted against it by Skyline Steel Corp. in that action, as was basedon extra work that it did not approve in writing and work performed or materials delivered priorto the operative date of certain release documents, and Skyline Steel Corp. cross-appeals fromstated portions of the same order, (4) Miriam Osborn Memorial Home Association separatelyappeals from so much of a fourth order of the same court, also entered January 9, 2008, as deniedthose branches of its separate motion in action No. 1 which were for summary judgmentdismissing so much of the cause of action to foreclose a mechanic's lien asserted against it bySpectrum Painting Contractors, Inc., in that action, as was based on extra work that it did notapprove in writing and work performed or materials delivered prior to the operative date ofcertain release documents, (5) Miriam Osborn Memorial Home Association separately appealsfrom so much of a fifth order of the same court, also entered January 9, 2008, as denied thosebranches of its separate motion in action No. 1 which were for summary judgment dismissing somuch of the cross claim to foreclose a mechanic's lien asserted against it by Mensch Mill &Lumber Corp. in that action, as was based on extra work that it did not approve in writing andwork performed or materials delivered prior to the operative date of certain release documents,(6) Miriam Osborn Memorial Home Association separately appeals from so much of a sixthorder of the same court, also entered January 9, 2008, as denied that branch of its separatemotion in action No. 1 which was for summary judgment dismissing the cross claim to recoverdamages for unjust enrichment asserted against it by Eastern Excavation, Inc., in that action, (7)Miriam Osborn Memorial Home Association separately appeals from a seventh order of thesame court, also entered January 9, 2008, which denied its separate motion in action No. 1 forsummary judgment dismissing so much of the cross claim to foreclose a mechanic's lien assertedagainst it by Oldcastle Precast, Inc., doing business as Spancrete Northeast, in that action, as wasbased on extra work that it did not approve in writing and work performed or materials deliveredprior to the operative date of certain release documents, (8) Miriam Osborn Memorial HomeAssociation separately appeals from so much of an eighth order of the same court, also enteredJanuary 9, 2008, as denied that branch of its separate motion in action No. 1 which was forsummary judgment dismissing so much of the cross claim to foreclose a mechanic's lien assertedagainst it by Advanced Epoxy Flooring Systems, Inc., in that action, as was based on workperformed or materials delivered prior to the operative date of certain release documents, (9)Miriam Osborn Memorial Home Association separately appeals from so much of a ninth order ofthe same court, also entered January 9, 2008, as denied that branch of its separate motion inaction No. 1 which was for summary judgment dismissing so much of the cross claim toforeclose a mechanic's lien asserted against it by Navillus Contracting, Inc., in that action, as wasbased on work performed or materials delivered prior to the operative date of certain releasedocuments, (10) Miriam Osborn Memorial Home Association separately appeals from a tenthorder of the same court, also entered January 9, 2008, which denied its separate motion in actionNo. 1 for summary judgment dismissing so much of the cross claim to foreclose a mechanic'slien asserted against it by MGC Stone Company, Inc., in that action, as was based on extra workthat it did not approve in writing and work performed or materials [*3]delivered prior to the operative date of certain release documents,(11) Miriam Osborn Memorial Home Association separately appeals from so much of aneleventh order of the same court, also entered January 9, 2008, as denied those branches of itsseparate motion in action No. 1 which were for summary judgment dismissing so much of thecross claim to foreclose a mechanic's lien asserted against it by M. Gottfried, Inc., in that action,as was based on extra work that it did not approve in writing and work performed or materialsdelivered prior to the operative date of certain release documents, (12) Miriam Osborn MemorialHome Association separately appeals from a twelfth order of the same court, also enteredJanuary 9, 2008, which denied its separate motion in action No. 1 for summary judgmentdismissing so much of the cross claim to foreclose a mechanic's lien asserted against it by AcmeArchitectural Products, Inc., in that action, as was based on extra work that it did not approve inwriting and work performed or materials delivered prior to the operative date of certain releasedocuments, (13) Miriam Osborn Memorial Home Association separately appeals from athirteenth order of the same court, also entered January 9, 2008, which denied its separate motionin action No. 1 for summary judgment dismissing the cross claims to recover damages for breachof contract and unjust enrichment asserted against it by Mariano Cardillo & Sons, Inc., in thataction, and dismissing so much of the cross claim to foreclose a mechanic's lien asserted againstit by Mariano Cardillo & Sons, Inc., in that action, as was based on extra work that it did notapprove in writing and work performed or materials delivered prior to the operative date ofcertain release documents, (14) Miriam Osborn Memorial Home Association separately appealsfrom so much of a fourteenth order of the same court, also entered January 9, 2008, as deniedthose branches of its separate motion in action No. 1 which were for summary judgmentdismissing the cross claim to recover damages asserted against it by R&J Construction Corp. inthat action, and dismissing so much of the cross claim to foreclose a mechanic's lien assertedagainst it by R&J Construction Corp., in that action, as was based on extra work that it did notapprove in writing and work performed or materials delivered prior to the operative date ofcertain release documents, (15) Miriam Osborn Memorial Home Association separately appealsfrom a fifteenth order of the same court, also entered January 9, 2008, which granted, in part, thecross motion of R&J Construction Corp., (16) Miriam Osborn Memorial Home Associationseparately appeals from so much of a sixteenth order of the same court, also entered January 9,2008, as denied those branches of its separate motion in action No. 1 which were for summaryjudgment dismissing the cross claim to foreclose a mechanic's lien asserted against it byNationwide Mechanical Contractors Corp. in that action, as was based on extra work that it didnot approve in writing and work performed or materials delivered prior to the operative date ofcertain release documents, (17) Miriam Osborn Memorial Home Association separately appealsfrom so much of a seventeenth order of the same court, also entered January 9, 2008, as deniedthose branches of its separate motion in action No. 1 which were for summary judgmentdismissing the cross claim to foreclose a mechanic's lien asserted against it by Frank & LindyPlumbing & Heating, Inc., in that action, as was based on extra work that it did not approve inwriting and work performed or materials delivered prior to the operative date of certain releasedocuments, (18) Miriam Osborn Memorial Home Association separately appeals from so muchof an eighteenth order of the same court, also entered January 9, 2008, as denied those branchesof its separate motion in action No. 1 which were for summary judgment dismissing the crossclaim to foreclose a mechanic's lien asserted against it by Solar Electric Systems, Inc., in thataction, as was based on extra work that it did not approve in writing and work performed ormaterials delivered prior to the operative date of certain release documents, and (19) MiriamOsborn Memorial Home Association separately appeals from a nineteenth order of the samecourt, also entered January 9, 2008, which denied its cross motion in action No. 1 for summaryjudgment dismissing the cross claim to enforce a trust pursuant to Lien Law article 3-A assertedagainst it by Solar Electric Systems, Inc., in that action.
Ordered that the cross appeal from the third order entered January 9, 2008 is dismissed, asSkyline Steel Corp. is not aggrieved by the portions of the order cross-appealed from (seeCPLR 5511); and it is further,
Ordered that the appeal from the fifteenth order entered January 9, 2008 is dismissed asabandoned; and it is further,
Ordered that the first order entered January 9, 2008 is affirmed insofar as appealed andcross-appealed from; and it is further,[*4]
Ordered that the second, seventh, tenth, twelfth, andnineteenth orders entered January 9, 2008 are affirmed; and it is further,
Ordered that the third order entered January 9, 2008 is affirmed insofar as appealed from byMiriam Osborn Memorial Home Association; and it is further,
Ordered that the fourth order entered January 9, 2008 is modified, on the law, by deleting theprovision thereof denying that branch of the separate motion of Miriam Osborn Memorial HomeAssociation in action No. 1 which was for summary judgment dismissing so much of the causeof action to foreclose a mechanic's lien asserted against it by Spectrum Painting Contractors,Inc., in that action as was based on extra work that it did not approve in writing and substitutingtherefor a provision granting that branch of the separate motion; as so modified, the fourth orderentered January 9, 2008 is affirmed insofar as appealed from; and it is further,
Ordered that the fifth, eighth, ninth, eleventh, sixteenth, seventeenth, and eighteenth ordersentered January 9, 2008 are affirmed insofar as appealed from; and it is further,
Ordered that the sixth order entered January 9, 2008 is reversed insofar as appealed from, onthe law, and that branch of the separate motion of Miriam Osborn Memorial Home Associationin action No. 1 which was for summary judgment dismissing the cross claim to recover damagesfor unjust enrichment asserted against it by Eastern Excavation, Inc., in that action is granted;and it is further,
Ordered that the thirteenth order entered January 9, 2008 is modified, on the law, by deletingthe provisions thereof denying those branches of the separate motion of Miriam OsbornMemorial Home Association in action No. 1 which were for summary judgment dismissing thecross claims to recover damages for breach of contract and unjust enrichment asserted against itby Mariano Cardillo & Sons, Inc., in that action and substituting therefor provisions grantingthose branches of the motion; as so modified, the thirteenth order entered January 9, 2008 isaffirmed insofar as appealed from; and it is further,
Ordered that the fourteenth order entered January 9, 2008 is modified, on the law, bydeleting the provision thereof denying that branch of the separate motion of Miriam OsbornMemorial Home Association in action No. 1 which was for summary judgment dismissing thecross claim to recover damages for breach of contract asserted against it by R&J ConstructionCorp. in that action and substituting therefor a provision granting that branch of the motion; as somodified, the fourteenth order entered January 9, 2008 is affirmed insofar as appealed from; andit is further,
Ordered that one bill of costs is awarded to Kreisler Borg Florman General Construction Co.Inc., Skyline Steel Corp., Mensch Mill & Lumber Corp., Oldcastle Precast, Inc., NavillusContracting, Inc., MGC Stone Company, Inc., M. Gottfried Inc., Acme Architectural Products,Inc., Nationwide Mechanical Contractors, Corp., Frank & Lindy Plumbing & Heating, Inc. andSolar Electric Systems, Inc., appearing separately and filing separate briefs, payable by MiriamOsborn Memorial Home Association.
These 19 consolidated appeals concern the construction of two new residence halls(hereinafter the project) on real property owned by Miriam Osborn Memorial Home Association(hereinafter Osborn), which operates a retirement community. To finance the project and otherconstruction, Osborn borrowed the sum of more than $57 million from the Dormitory Authorityof the State of New York (hereinafter DASNY). In January 2000 Osborn, as "Owner," andKreisler Borg Florman General Construction Co., Inc. (hereinafter KBF), as "ConstructionManager Acting as an Independent Contractor Holding Trade Contracts," entered into a"Guaranteed Maximum Price Agreement" (hereinafter the Osborn/KBF agreement), wherebyKBF agreed to enter into contracts on behalf of itself with such subcontractors, suppliers, andvendors as were necessary to provide the labor, materials, and services attendant to the workspecified in the contract documents, for a guaranteed maximum price of $39 million. KBF, inturn, entered into contracts with numerous subcontractors and suppliers, 15 of which (hereinaftercollectively the trade contractors) are parties [*5]to these appeals.During construction of the project, the buildings experienced water damage, and despite an effortto expedite the remediation and repair of the damage, the project was not completed by the datespecified in the Osborn/KBF agreement. Although KBF contends that it had substantiallycompleted the project, Osborn, in February 2002, took the position that KBF was in default andproceeded to terminate KBF from the project. By that time, Osborn had paid KBF the guaranteedmaximum price set forth in the Osborn/KBF agreement, less the contractually specifiedretainage, but it did not pay KBF amounts for certain "extra work" that KBF and many of thetrade contractors allege Osborn directed them to perform during the course of the project, despitethe fact that the work was not included in the scope of the work specified in the Osborn/KBFagreement. Between December 2001 and April 2002 KBF and the 15 trade contractors each filednotices of mechanic's liens against Osborn's real property for amounts they alleged they wereowed and had not been paid.
In October 2001 Osborn submitted a claim to its insurer Travelers Indemnity Company(hereinafter Travelers) seeking coverage pursuant to its builder's risk insurance policy forexpenses it incurred and loss of income resulting from the water damage. As part of its claim,Osborn submitted invoices prepared by several of the trade contractors for work they performedin remediating the damage. After Travelers disclaimed coverage for the loss, Osborn commencedan action against Travelers in federal court, alleging breach of contract and seeking a judgmentdeclaring that Travelers had a duty to indemnify it for the loss. The United States District Courtfor the Southern District of New York granted Osborn's motion for summary judgment declaringthat Travelers was obligated to indemnify it for the loss. Osborn and Travelers thereafter enteredinto a so-ordered settlement agreement, whereby Osborn agreed to settle its $6,238,572.27 claimfor the sum of $2,750,000. The settlement agreement provided that, "at the request of theOsborn, the Proceeds are allocated as follows: $785,000 of the Proceeds is allocated to thoseexpenses incurred by KBF and its subcontractors in remediating mold contamination andrepairing water damage; and the balance of $1,965,000 is allocated to the payment of TheOsborn expenses."
In May 2002 Osborn commenced an action in the Supreme Court, Westchester County,against KBF (hereinafter action No. 6), inter alia, to recover damages for breach of contract,based on KBF's alleged failure, among other things, to perform satisfactory work in a timelymanner. KBF asserted a counterclaim to recover damages for breach of contract based on, interalia, Osborn's failure to pay costs allegedly incurred by KBF in accelerating the work to achievetimely completion of the project despite delays purportedly caused by Osborn and Osborn'sfailure to pay for extra work it directed to be performed despite the fact that the work wasoutside the scope of the Osborn/KBF agreement.
Shortly before the commencement of action No. 6, Spectrum Painting Contractors, Inc.(hereinafter Spectrum), one of the trade contractors, had commenced a separate action in thesame court (hereinafter action No. 1), inter alia, to foreclose its mechanic's lien. KBF, which wasnamed as a defendant in action No. 1, and the other 14 trade contractors, which were added asdefendants, asserted cross claims in action No. 1 to foreclose their mechanic's liens. Several ofthe trade contractors also asserted cross claims against Osborn to recover damages for breach ofcontract and/or unjust enrichment. Some trade contractors also asserted cross claims againstOsborn pursuant to Lien Law article 3-A for trust diversion, based on Osborn's alleged diversionof the proceeds that it received from its settlement with Travelers and/or its alleged diversion ofportions of the money that it had borrowed from DASNY. In several orders, the Supreme Courtdetermined that the insurance settlement proceeds and the DASNY funds were trust funds withinthe meaning of Lien Law article 3-A, and granted the motion of Solar Electric Systems, Inc.(hereinafter Solar), one of the trade contractors, for class certification to represent the class ofbeneficiaries of these Lien Law article 3-A trust funds (hereinafter the class).
By notice dated December 12, 2006, Osborn cross-moved against Solar for summaryjudgment dismissing Solar's cross claim in action No. 1 on behalf of the class for trust diversionon the ground, inter alia, that Osborn was not in privity with any of the members of the class. Bynotice dated March 1, 2007, Osborn made 16 separate motions for summary judgment in actionNo. 1—one motion against KBF and one motion against each of the 15 trade contractors.Osborn's 16 motions and one cross motion, plus a cross motion in action No. 6 by KBF, and aseparate cross motion in action [*6]No. 1 by R&J ConstructionCorp. (hereinafter R&J), one of the trade contractors, were determined in the 19 orders that arethe subject of these consolidated appeals.
The Supreme Court properly denied Osborn's motion for summary judgment dismissingKBF's counterclaim in action No. 6 to recover damages for breach of contract and dismissingKBF's cross claim in action No. 1 to foreclose its mechanic's lien. Osborn correctly argues thatKBF may not recover additional compensation resulting from delay, including the costs incurredby KBF to accelerate the work in an attempt to achieve timely completion. It is undisputed thatKBF did not give written notice to Osborn, as required by the terms of the Osborn/KBFagreement, within 20 days after the onset of any unavoidable delay, that it would be seeking anextension of time or an increase in the guaranteed maximum price by reason of unavoidabledelay (see F. Garofalo Elec. Co. v New York Univ., 270 AD2d 76, 80 [2000]; A.Beecher Greenman Constr. Corp. v Incorporated Vil. of Northport, 209 AD2d 565, 566[1994]; Huff Enters. v Triborough Bridge & Tunnel Auth., 191 AD2d 314 [1993]).KBF's counterclaim to recover damages for breach of contract in action No. 6 and its cross claimto foreclose its mechanic's lien in action No. 1 are not only based on delay damages, however;they are also based on KBF's alleged performance of "extra work" it was directed to perform byOsborn outside the scope of the Osborn/KBF agreement. Although the Osborn/KBF agreementprovides that KBF was to bear the cost of extra work it performed without receiving a signedchange order or authorization from Osborn prior to performance, KBF raised a triable issue offact regarding whether Osborn waived this requirement (see Joseph F. Egan, Inc. v City ofNew York, 17 NY2d 90, 96 [1966]; Tridee Assoc. v New York City School Constr.Auth., 292 AD2d 444, 445 [2002]; Barsotti's, Inc. v Consolidated Edison Co. of N.Y.,254 AD2d 211, 212 [1998]; Austin v Barber, 227 AD2d 826, 828 [1996];Mel-Stu Constr. Corp. v Melwood Constr. Corp., 131 AD2d 823, 824 [1987]).
Contrary to Osborn's contention, the Supreme Court properly granted that branch of KBF'scross motion which was, in effect, for summary judgment dismissing the complaint insofar asasserted against it to the extent that the complaint sought to recover damages from KBF in theamount of unreimbursed casualty and property damage remediation claims that Osbornsubmitted to Travelers. The Osborn/KBF agreement provided that Osborn waived all rightsagainst KBF for damages caused by fire or other perils "to the extent covered by insuranceprovided under or obtained pursuant to this section on Builder's Risk Insurance," and the UnitedStates District Court for the Southern District of New York determined that the claims submittedby Osborn to Travelers were covered, and that Travelers was obligated to indemnify Osborn forthe losses set forth in those claims. Contrary to KBF's contention, however, the Supreme Courtproperly denied that branch of its cross motion which was for summary judgment limitingOsborn's potential recovery against it for delay damages to the sum of $350,000, as Osbornraised a triable issue of fact with respect to the issue of whether KBF abandoned the contract,thus rendering inapplicable the liquidated damages clause otherwise limiting Osborn's recoveryto that amount (see City of Elmira v Larry Walter, Inc., 76 NY2d 912, 913-914 [1990];Town of N. Hempstead v Sea Crest Constr. Corp., 119 AD2d 744 [1986]).
Osborn contends on appeal that the Supreme Court should have awarded it summaryjudgment dismissing the trade contractors' causes of action or cross claims since none of themwere in contractual privity with it. To the extent that Osborn contends that the Supreme Courtshould have awarded it summary judgment dismissing the trade contractors' lien foreclosurecauses of action, as set forth in their various pleadings, this contention is not properly before thisCourt, as Osborn did not move for summary judgment dismissing those claims on that ground. Inany event, a materialperson or subcontractor is not required to be in contractual privity with theproperty owner in order to file and foreclose on a mechanic's lien (see Lien Law §3; Kuhn v Kober, 203 AD2d 536 [1994]; Rainbow Elec. Co. v Bloom, 132AD2d 539 [1987]; Hartman v Travis, 81 AD2d 692, 693 [1981]). Osborn did, however,argue in the Supreme Court that a lack of privity required the Court to award it summaryjudgment dismissing Solar's cross claim, on behalf of the class, alleging trust diversion, and thata lack of privity required the Court to award it summary judgment dismissing any breach ofcontract causes of action or cross claims that the trade contractors asserted against it.Nevertheless, the Supreme Court properly denied Osborn's motion for summary judgmentdismissing Solar's trust diversion cross claim. Although an owner's liability pursuant to LienLaw article 3-A requires the existence of an obligation on the part of the owner (see LienLaw § 71 [3]), the obligation may be one either imposed by contract "or as the result of amechanic's lien" (Quantum Corporate Funding v L.P.G. Assoc., 246 AD2d 320, 322[1998]; see [*7]Weber v Welch, 246 AD2d 782, 784[1998]; cf. Innovative Drywall v Crown Plastering Corp., 224 AD2d 664 [1996];Matter of ABJEN Props. v Crystal Run Sand & Gravel, 168 AD2d 783, 784 [1990]). TheSupreme Court should have granted those branches of Osborn's motions, however, which werefor summary judgment dismissing the breach of contract cross claims asserted against it by tradecontractors R&J and Mariano Cardillo & Sons, Inc. (hereinafter Cardillo), since "a subcontractormay not assert a cause of action to recover damages for breach of contract against a party withwhom it is not in privity" (Perma Pave Contr. Corp. v Paerdegat Boat & Racquet Club,156 AD2d 550, 551 [1989]; see Delta Elec. v Ingram & Greene, 123 AD2d 369, 370[1986]). The contracts that R&J and Cardillo entered into with KBF, as well as the Osborn/KBFagreement, which was incorporated into those contracts, establish that KBF was not Osborn'sagent on the project, but an independent contractor that entered into its own contracts with thetrade contractors (cf. R & A Constr. Corp. v Queens Blvd. Extended Care Facility Corp.,290 AD2d 548, 549 [2002]). Contrary to the finding of the Supreme Court, in opposition toOsborn's motions, neither R&J nor Cardillo presented any evidence that Osborn directlycontracted with R&J or Cardillo for the performance of extra work. The Supreme Court did notdecide those branches of Osborn's motions which were for summary judgment dismissing thebreach of contract cross claims asserted against it by trade contractors Skyline and Mensch Mill& Lumber Corp. (hereinafter Mensch). Since those branches of Osborn's motions remainpending and undecided, any arguments that Osborn raises with respect to them are not properlybefore this Court (see Fuiaxis v 111Huron St., LLC, 58 AD3d 798, 799-800 [2009]; Katz v Katz, 68 AD2d 536,542-543 [1979]).
The Supreme Court should have granted those branches of Osborn's motions which were forsummary judgment dismissing the unjust enrichment cross claims asserted against it by tradecontractors Cardillo and Eastern Excavation, Inc. (hereinafter Eastern), as the existence of theircontracts with KBF governing the same subject matter precludes recovery in quasi contract(see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388-389 [1987];Sybelle Carpet & Linoleum of Southampton v East End Collaborative, 167 AD2d 535,536 [1990]). Contrary to the determination of the Supreme Court, certain deposition testimony ofEastern's president, submitted by Osborn along with its motion, did not raise an issue of factregarding whether Eastern's contract with KBF was terminated. Although Eastern's presidenttestified at his deposition that he received a "termination letter" from KBF in September 2001,based on Eastern's alleged failure to perform according to the contract, he further testified thatKBF did not "follow through" on the termination and that the parties agreed that Eastern wouldcontinue on the project.
In its motions against each trade contractor, Osborn contended that it was entitled tosummary judgment dismissing so much of each trade contractor's lien foreclosure claim, as setforth in their respective pleadings, as was based on work performed or materials delivered priorto the dates of certain requisitions for payment submitted by the trade contractors and prior to theoperative dates of certain release and waiver of lien forms that the trade contractors executed.Contrary to Osborn's contention, the requisitions for payment forms executed by the tradecontractors did not contain waivers of the trade contractors' right to file any liens or claimsagainst it. Rather, the requisitions for payment forms, by their terms, were only applicable toliens or claims made by subcontractors, laborers, or suppliers of the trade contractor. While therelease and waiver of lien forms executed by the trade contractors are applicable to the claimsand liens of the trade contractors, it is not clear from the language of these documents that, inexecuting them, the trade contractors were waiving the right to make claims for prior work(see Ess & Vee Acoustical & Lathing Contrs. v Prato Verde, Inc., 268 AD2d 332[2000]). Moreover, the majority of the trade contractors were contractually required to submitthese forms as a condition precedent to their entitlement to and receipt of progress payments.The circumstances surrounding the execution of these documents reveal an issue of factregarding whether the documents constituted mere receipts for payment actually received (see E-J Elec. Installation Co. v BrooklynHistorical Socy., 43 AD3d 642, 643-644 [2007]; Apollo Steel Corp. v Sicolo &Massaro, 300 AD2d 1021, 1022 [2002]; West End Interiors v Aim Constr. & Contr.Corp., 286 AD2d 250, 251-252 [2001]; Orange Steel Erectors v Newburgh Steel Prods.,225 AD2d 1010, 1012 [1996]). Accordingly, the Supreme Court properly denied thosebranches of Osborn's motions which were for summary judgment dismissing so much of the lienforeclosure claims, as set forth in the pleadings of the trade contractors Spectrum, Skyline,Mensch, Cardillo, R&J, Solar, Oldcastle Precast, Inc., doing business as Spancrete Northeast(hereinafter Oldcastle), Navillus Contracting, Inc. (hereinafter Navillus), MGC Stone Company,Inc. (hereinafter MGC), M. Gottfried, Inc. (hereinafter M. Gottfried), Acme [*8]Architectural Products, Inc. (hereinafter Acme), NationwideMechanical Contractors, Corp. (hereinafter Nationwide), and Frank & Lindy Plumbing &Heating, Inc. (hereinafter Frank & Lindy), as were based on work performed or materialsdelivered prior to the dates of the requisitions for payment and prior to the operative dates of therelease and waiver of lien documents.
In its motions against each trade contractor, Osborn also contended that it was entitled tosummary judgment dismissing so much of each trade contractor's lien foreclosure claim, as setforth in their various pleadings, as was based on extra work that Osborn did not authorize inwriting. The contracts that Mensch and Acme entered into with KBF, unlike the contracts thatthe remaining trade contractors entered into with KBF, do not contain any provision that extrawork must be approved in a writing signed by both KBF and Osborn. Thus, Osborn failed tomake a prima facie showing of its entitlement to judgment as a matter of law on this issue withrespect to Mensch and Acme, and, accordingly, the Supreme Court properly denied thosebranches of Osborn's motions which were for summary judgment dismissing so much of the lienforeclosure cross claims asserted against it by Mensch and Acme as were based on extra workthat Osborn did not authorize in writing. Osborn did, however, make such a showing withrespect to the remaining trade contractors. Thus, it established its prima facie entitlement tojudgment as a matter of law with respect to so much of those trade contractors' lien foreclosureclaims as were based on such work (see Crane v Genin, 60 NY 127, 131 [1875];Larry Alvaro, Inc. v Chow, 221 AD2d 752, 753 [1995]; Hownor Assoc. vWashington Sq. Professional Bldg., 63 AD2d 573, 574 [1978]). Nonetheless, in oppositionto Osborn's respective motions, Skyline, Oldcastle, MGC, M. Gottfried, R&J, Nationwide, Frank& Lindy, Solar, and Cardillo each raised a triable issue of fact regarding whether Osborn waivedthe contractual requirement that it must approve the extra work in writing (see Joseph F.Egan, Inc. v City of New York, 17 NY2d at 96; Tridee Assoc. v New York City SchoolConstr. Auth., 292 AD2d at 445; CGM Constr. v Miller, 263 AD2d 831, 832 [1999];La Rose v Backer, 11 AD2d 314, 320 [1960], affd 11 NY2d 760 [1962]).Accordingly, the Supreme Court properly denied those branches of Osborn's motions which werefor summary judgment dismissing so much of the lien foreclosure cross claims of Skyline,Oldcastle, MGC, M. Gottfried, R&J, Nationwide, Frank & Lindy, Solar, and Cardillo as wasbased on extra work it did not approve in writing. Spectrum, on the other hand, presented noevidence in this regard. Accordingly, the Supreme Court should have granted that branch ofOsborn's motion which was for summary judgment dismissing so much of Spectrum's cause ofaction to foreclose its mechanic's lien as was based on extra work which was not approved inwriting by Osborn.
Skyline's cross appeal must be dismissed because it is not aggrieved by the portion of theorder cross-appealed from (see CPLR 5511; Sirius Am. Ins. Co. v Vigo Constr. Corp., 48 AD3d 450, 451[2008]). The mere fact that "the order appealed from contains language or reasoning that a partydeems adverse to its interests does not furnish a basis for standing to take an appeal" (SiriusAm. Ins. Co. v Vigo Constr. Corp., 48 AD3d at 451-452 [internal quotation marks omitted];see Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 472-473 [1986]).
Navillus did not file a notice of appeal. Accordingly, its contention that the Supreme Courterred in granting that branch of Osborn's motion which was for summary judgment dismissing somuch of its lien foreclosure cross claim as was based on extra work which was not approved inwriting by Osborn is not properly before this Court.
Osborn's appeal from the fifteenth order entered January 9, 2008 must be dismissed asabandoned, as Osborn does not seek reversal of any portion of that order in its brief (see Sirma v Beach, 59 AD3d 611,614 [2009]; Bibas v Bibas, 58AD3d 586 [2009]).
The parties' remaining contentions are without merit. Spolzino, J.P., Angiolillo, Leventhaland Lott, JJ., concur.