| Sato Constr. Co., Inc. v 17 & 24 Corp. |
| 2012 NY Slip Op 01599 [92 AD3d 934] |
| February 28, 2012 |
| Appellate Division, Second Department |
| Sato Construction Co., Inc., Doing Business as Flag Waterproofing& Restoration Company, Respondent, v 17 And 24 Corporation,Appellant. |
—[*1] Rabinowitz & Galina, Mineola, N.Y. (Michael R. Galina and Gayle A. Rosen of counsel), forrespondent.
In an action to recover damages for breach of contract and defamation, the defendant appealsfrom so much of an order of the Supreme Court, Nassau County (Bucaria, J.), entered September10, 2010, as denied those branches of its motion which were pursuant to CPLR 3211 (a) (1) and(7) to dismiss the first, second, third, and fourth causes of action, which allege breach of contract.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant, 17 And 24 Corporation (hereinafter the Corporation), owns several landmarkresidential buildings in Manhattan, known collectively as the Rockefeller Apartments. A reportof the New York City Landmarks Preservation Commission stated that the "window detailing ofthe Rockefeller Apartments is one of the buildings' most significant features." The Corporationhired the plaintiff, Sato Construction Co., Inc., doing business as Flag Waterproofing &Restoration Company (hereinafter Flag), to repair and restore the windows at the Corporation'sbuilding located at 24 West 55th Street. The parties entered into a contract on October 25, 2007,which provided for multiple periodic payments by the Corporation to Flag, subject to approval ofFlag's work by architects retained by the Corporation. In February and March 2010, Flagsubmitted applications for Payment Nos. 16, 17, and 18, as required by the contract. Thearchitects approved the application for these payments, which totaled $33,750. In its complaint,Flag alleged that it has yet to be paid.
On February 12, 2010, the architects sent the Corporation a letter that stated that "due to thesevere deterioration of many of the windows, Flag is not capable of restoring all of the steelwindows." The Corporation then terminated the contract pursuant to section 14.2.2 thereof,which provided that "the Owner, upon certification by the Architect that sufficient cause exists tojustify such an action, may . . . terminate employment of the Contractor."
Flag commenced this action, alleging breach of contract and defamation, and the [*2]Corporation moved to dismiss the complaint pursuant to CPLR3211 (a) (1) and (7). In an order entered September 10, 2010, the Supreme Court granted thatbranch of the Corporation's motion which was pursuant to CPLR 3211 (a) (7) to dismiss thedefamation cause of action, but denied those branches of the motion which were pursuant toCPLR 3211 (a) (1) and (7) to dismiss the four breach of contract causes of action. TheCorporation appeals from so much of the order as was adverse to it. We affirm the order insofaras appealed from.
To succeed on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (1), thedocumentary evidence which forms the basis of the defense must be such that it resolves allfactual issues as a matter of law, and conclusively disposes of the plaintiff's claim (seeGoshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Jesmer v Retail Magic, Inc., 55 AD3d171, 180 [2008]; PrudentialWykagyl/Rittenberg Realty v Calabria-Maher, 1 AD3d 422 [2003]). Here, thedocumentary evidence submitted by the Corporation established that it hired Flag to restore all ofthe windows in its landmark building, that architects retained by the Corporation later informedthe Corporation that the condition of the windows had deteriorated too much, and that thewindows could not all be restored. While the architects may have made a factual determinationthat the job for which Flag had been retained was impossible to complete, such a determinationdoes not, as alleged by the Corporation, conclusively establish impossibility of performance, orthat reasonable cause to terminate the contract existed pursuant to sections 14.2.1, 14.2.2, andarticle 2 of the contract, which provided for termination in the event of a breach. Accordingly,the Supreme Court properly concluded that the documentary evidence submitted by theCorporation failed to resolve all factual issues as a matter of law, and did not conclusivelydispose of the first and second causes of action (see Goshen v Mutual Life Ins. Co. ofN.Y., 98 NY2d at 326; Jesmer v Retail Magic, Inc., 55 AD3d at 180). As such, theSupreme Court properly denied those branches of the Corporation's motion which were pursuantto CPLR 3211 (a) (1) to dismiss the first and second causes of action.
The Supreme Court also properly denied those branches of the Corporation's motion whichwere pursuant to CPLR 3211 (a) (1) to dismiss the third and fourth causes of action, which werepredicated on the Corporation's alleged failure to make Payment Nos. 16, 17, and 18 for workalready performed pursuant to the contract. Although section 14.2.3 of the contract recites that"[w]hen the Owner terminates the Contract for one of the reasons stated in Section 14.2.1, theContractor shall not be entitled to receive further payment until the Work is finished," section1.1.3 of the contract provides that the "Work" itself can consist of construction and other servicesrequired by the contract that are only "partially completed." Thus, the Supreme Court properlydetermined that the documentary evidence submitted by the Corporation failed to resolve allfactual issues as a matter of law, and did not conclusively dispose of the third and fourth causesof action (id.).
Moreover, the first, second, third, and fourth causes of action all state causes of action torecover damages for breach of contract (see generally Leon v Martinez, 84 NY2d 83,87-88 [1994]) and, thus, the Supreme Court properly denied those branches of the Corporation'smotion which were pursuant to CPLR 3211 (a) (7) to dismiss those causes of action. Angiolillo,J.P., Lott, Austin and Cohen, JJ., concur. [Prior Case History: 2010 NY Slip Op32508(U).]