| Utility Servs. Contr., Inc. v Monroe County Water Auth. |
| 2011 NY Slip Op 09725 [90 AD3d 1661] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| Utility Services Contracting, Inc.,Respondent-Appellant, v Monroe County Water Authority, Appellant-Respondent.(Appeal No. 1.) |
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Appeal and cross appeal from an order of the Supreme Court, Monroe County (Kenneth R.Fisher, J.), entered August 4, 2010 in a breach of contract action. The order denied in part themotion of defendant for summary judgment and denied plaintiff's cross motion for summaryjudgment.
It is hereby ordered that said appeal from the order insofar as it denied that part ofdefendant's motion for summary judgment dismissing the first cause of action to the extent that itsought consequential damages is unanimously dismissed and the order is modified on the law bygranting those parts of defendant's motion for summary judgment dismissing the first cause ofaction except to the extent that it sought consequential damages and for summary judgment onthe counterclaim in the amount of $108,000 plus prejudgment interest and as modified the orderis affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages resulting from defendant'salleged breach of a contract for a water main installation project. By the order in appeal No. 1,Supreme Court granted those parts of defendant's motion for summary judgment dismissing thesecond through fourth causes of action, denied those parts of defendant's motion for summaryjudgment dismissing the first cause of action, for breach of the implied covenant of good faithand fair dealing, and for summary judgment on the counterclaim, for liquidated damages andattorneys' fees, and denied plaintiff's cross motion for summary judgment on the amendedcomplaint. We note that, although the court did not address that part of the motion for summaryjudgment on the issue of consequential damages, the failure to rule on that part of the motion isdeemed a denial thereof (see Brown v U.S. Vanadium Corp., 198 AD2d 863, 864[1993]). In appeal No. 2, defendant moved for leave to reargue only that part of its motion forsummary judgment determining that plaintiff was contractually precluded from seekingconsequential damages. The court granted the motion for leave to reargue and, upon reargument,the court noted that only that part of its prior order concerning the first cause of action was atissue, and it concluded that defendant was not entitled to summary judgment on the issue ofconsequential [*2]damages. We note at the outset that defendant'sappeal from the order in appeal No. 1 must be dismissed with respect to the issue ofconsequential damages inasmuch as it was superseded by the order in appeal No. 2 (seeLoafin' Tree Rest. v Pardi [appeal No. 1], 162 AD2d 985 [1990]).
We agree with defendant in each appeal that the first cause of action, for breach of theimplied covenant of good faith and fair dealing, must be dismissed. We therefore modify theorder in each appeal accordingly. We conclude that the first and second causes of action areduplicative inasmuch as they both allege that defendant breached the contract in question byinterfering with subcontractors and refusing to grant appropriate extensions, thus preventingplaintiff from completing the contract in a timely manner (see New York Univ. v ContinentalIns. Co., 87 NY2d 308, 319-320 [1995]; Hassett v New York Cent. Mut. Fire Ins.Co., 302 AD2d 886 [2003]; see generally Bass v Sevits, 78 AD2d 926, 927 [1980]).We note that the allegations underlying the first cause of action occurred prior to a writtenamendment to the contract whereby defendant granted plaintiff an extension. With respect todefendant's interference and failure to grant an additional extension following that amendment, asalleged in the second cause of action, defendant met its initial burden on the motion and plaintifffailed to submit evidence sufficient to raise a triable issue of fact whether an additional extensionwas requested in writing as required by the contract (see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]). Further, the parties' prior conduct in requesting andgranting an extension to the contractual time limit in writing belie the contention of plaintiff thatthe contract's requirements with respect thereto were waived (see Phoenix Corp. v U.W. Marx, Inc., 64 AD3d 967, 969-970[2009]; Charles T. Driscoll MasonryRestoration Co., Inc. v County of Ulster, 40 AD3d 1289, 1291-1292 [2007]). In light ofour conclusion that defendant is entitled to summary judgment dismissing the amendedcomplaint in its entirety, the issue whether plaintiff is entitled to consequential damages is moot.
Contrary to plaintiff's contention on its cross appeal in appeal No. 1, the court properlygranted those parts of defendant's motion for summary judgment dismissing the third cause ofaction, for promissory estoppel, and the fourth cause of action, for unjust enrichment. We furtherconclude that plaintiff failed to establish that facts essential to justify opposition to the motionwere in the exclusive possession of defendant (see Santangelo v Fluor Constructors Intl.,266 AD2d 893 [1999]).
We also agree with defendant in appeal No. 1 that the court erred in denying that part of itsmotion for summary judgment on the counterclaim. There is no triable issue of fact with respectto defendant's entitlement to liquidated damages calculated from the original contractualcompletion date of August 1, 2002, inasmuch as the contractual amendment expressly reserveddefendant's right to those damages. Further, although defendant entered into a release agreementpursuant to which plaintiff's surety would assess only $75,000 in liquidated damages against theperformance bond issued by it, defendant expressly reserved its right to seek the remainder ofliquidated damages from plaintiff. We therefore further modify the order in appeal No. 1 bygranting that part of defendant's motion for summary judgment on the counterclaim in theamount of $108,000 plus prejudgment interest, constituting the remainder of liquidated damagesowed following the surety's payment of $75,000 (see generally CPLR 5001 [a]). Theremaining contentions of defendant in appeal No. 1 are moot.
Finally, we note that plaintiff abandoned any challenge to the order in appeal No. 2 inasmuchas it failed to raise any contentions with respect to the only part of the order by which plaintiff isaggrieved (see CPLR 5511), i.e., that part denying its request for costs and attorneys' feesassociated with the motion (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994]).Present—Fahey, J.P., Peradotto, Lindley, Green and Gorski, JJ.