| Joseph P. Carrara & Sons, Inc. v A.R. Mack Constr. Co., Inc. |
| 2011 NY Slip Op 07772 [89 AD3d 1190] |
| November 3, 2011 |
| Appellate Division, Third Department |
| Joseph P. Carrara & Sons, Inc., Appellant, v A.R. Mack ConstructionCompany, Inc., Respondent. |
—[*1] Breakell Law Firm, P.C., Albany (Paul C. Marthy of counsel), for respondent.
Mercure, J.P. Appeal from an order of the Supreme Court (Muller, J.), entered December 21,2010 in Essex County, which, among other things, granted defendant's cross motion for summaryjudgment dismissing the complaint.
In May 2008, plaintiff, a subcontractor, entered into a purchase order agreement with defendant, acontractor, whereby plaintiff agreed to provide concrete to a construction site located in the Town ofTiconderoga, Essex County. The agreement did not specify delivery dates, but indicated that deliverywould be as scheduled by the parties.
Plaintiff made deliveries from August through November 2008, at which point all that remained tobe delivered was the concrete for the interior floor slab. Plaintiff's general manager, Paul Carrara, theninformed defendant's representatives that, due to the colder weather, plaintiff could not deliver theremaining concrete on the five-day pour schedule that defendant sought. Although the parties agreedupon a nine-day pour schedule commencing on December 1, 2008, another subcontractor'sabandonment of the job site prevented the pouring from beginning on that day. Defendant thenrequested again that plaintiff agree to meet a five-day pour schedule once pouring commenced. Inresponse, Carrara sent defendant a December 2, 2008 letter proposing a six-day pour schedule andoutlining the weather conditions that would be required in order to meet that schedule. The concludingparagraph of the letter required written acceptance of the [*2]terms by3:00 p.m. that day or plaintiff would "begin immediately shutting our New York operation down for thewinter." Defendant did not reply, but instead retained Cranesville Block Company, another concretesupplier.
Plaintiff commenced this action asserting causes of action in breach of contract, promissoryestoppel, quantum meruit and account stated. During discovery, plaintiff moved to compel productionof documents related to Cranesville's delivery of the concrete. Defendant opposed the motion andcross-moved for, among other things, summary judgment dismissing the complaint on the ground thatplaintiff anticipatorily repudiated the contract. Supreme Court denied plaintiff's motion, granteddefendant's cross motion, and dismissed the complaint. Plaintiff now appeals, arguing that questions offact preclude summary judgment. We disagree.
A claim of anticipatory repudiation must be supported by evidence of an unqualified and clearrefusal to perform with respect to the entire contract (see Highbridge Dev. BR, LLC v Diamond Dev., LLC, 67 AD3d 1112,1115 [2009]; O'Connor v Sleasman, 37AD3d 954, 956 [2007], lv denied 9 NY3d 806 [2007]). It is well established that such arefusal may take the form of an unequivocal statement of intent to perform only upon the satisfaction ofextracontractual conditions (see Norcon Power Partners v Niagara Mohawk Power Corp., 92NY2d 458, 463 [1998]; Fonda v FirstPioneer Farm Credit, ACA, 86 AD3d 693, 694-695 [2011]; Highbridge Dev. BR, LLCv Diamond Dev., LLC, 67 AD3d at 1115; SPI Communications v WTZA-TV Assoc. Ltd.Partnership, 229 AD2d 644, 645 [1996]).
Here, Carrara's December 2, 2008 letter to defendant stated that plaintiff would shut down itsNew York operation, which supplied the majority of concrete to defendant's construction site, unlessdefendant accepted its terms within a matter of hours. Plaintiff does not dispute the extracontractualnature of these terms or the vital nature of its New York operation to fulfilling its contractual obligations.Nor has plaintiff presented any evidence that would call into question its unequivocally-stated intent toimmediately discontinue operations if defendant did not agree to the unilaterally-proposed conditions.Finally, plaintiff has failed to demonstrate how documents relating to defendant's subsequent purchaseof concrete from Cranesville are relevant to its claims or might raise a material question of fact. Underthese circumstances, Supreme Court properly denied plaintiff's discovery motion and granted summaryjudgment in defendant's favor, dismissing plaintiff's breach of contract claim on the ground that plaintiffanticipatorily repudiated the purchase order agreement.[FN*]
With respect to plaintiff's claim for finance charges relative to defendant's late payment of aninvoice, it is undisputed that finance charges were not provided for in the purchase order agreement.Furthermore, the agreement specifically stated that no additional terms proposed by plaintiff in anyother document would be binding on defendant unless agreed to in writing. Inasmuch as plaintiffsubmitted no proof that defendant ever agreed to the imposition of finance charges, Supreme Courtproperly dismissed that cause of action as well.
Peters, Stein, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, with costs.
Footnote *: Plaintiff has not challenged thedismissal of its claims sounding in promissory estoppel and quantum meruit.