| Mack-Cali Realty, L.P. v Everfoam Insulation Sys.,Inc. |
| 2013 NY Slip Op 06348 [110 AD3d 680] |
| October 2, 2013 |
| Appellate Division, Second Department |
| Mack-Cali Realty, L.P., et al.,Respondents-Appellants, v Everfoam Insulation Systems, Inc.,Defendant/Third-Party Plaintiff-Appellant-Respondent. Baysystems North America,LLC, Third-Party Defendant-Respondent. |
—[*1] Wechsler & Cohen, LLP, New York, N.Y. (Mitchell S. Cohen and James F. X. Hilerof counsel), for respondents-appellants. Heidell, Pittoni, Murphy & Bach, LLP, New York, N.Y. (Daniel S. Ratner ofcounsel), for third-party defendant-respondent.
In an action, inter alia, to recover damages for breach of contract, (1) thedefendant/third-party plaintiff appeals, as limited by its brief, from so much of an orderof the Supreme Court, Westchester County (O. Bellantoni, J.), entered August 22, 2011,as denied its motion for summary judgment dismissing the first cause of action in thecomplaint and granted that branch of the plaintiffs' motion which was for summaryjudgment dismissing its fourth affirmative defense, and the plaintiffs cross-appeal, aslimited by their brief, from so much of the same order as denied that branch of theirmotion which was for summary judgment on the issue of liability, (2) the plaintiffsappeal, as limited by their brief, from an order of the same court entered January 6, 2012,as, upon reargument, adhered to its original determination in the order entered August22, 2011, and (3) the defendant/third-party plaintiff appeals, as limited by its brief, fromso much of an order of the same court entered January 9, 2012, as granted those branchesof the third-party defendant's motion which were for summary judgment dismissing thesecond and third causes of action in the third-party complaint.
Ordered that the cross appeal by the plaintiffs from the order entered August 22,2011, is dismissed, as the portion of the order from which the plaintiffs cross-appeal wassuperseded by the order entered January 6, 2012, made upon reargument; and it isfurther,
Ordered that the order entered January 6, 2012, is affirmed insofar as appealed [*2]from; and it is further,
Ordered that the order entered August 22, 2011, is modified, on the law, by deletingthe provision thereof granting that branch of the plaintiffs' motion which was forsummary judgment dismissing the defendant/third-party plaintiff's fourth affirmativedefense, and substituting therefor a provision denying that branch of the motion; as somodified, the order entered August 22, 2011, is affirmed insofar as appealed from by thedefendant/third-party plaintiff; and it is further,
Ordered that the order entered January 9, 2012, is affirmed insofar as appealed from;and it is further,
Ordered that the third-party defendant is awarded one bill of costs payable by thedefendant/third-party plaintiff.
In opposition to the plaintiffs' prima facie demonstration of entitlement to judgmentas a matter of law on the issue of liability (see Zuckerman v City of New York,49 NY2d 557, 562 [1980]), the defendant/third-party plaintiff, Everfoam InsulationSystems, Inc. (hereinafter Everfoam), raised triable issues of fact as to whether itbreached the parties' contract for the installation of foam insulation, and whether it"exercise[d] reasonable skill and care in performing the work" (International Fid. Ins.Co. v Gaco W., 229 AD2d 471, 474 [1996]) which allegedly caused the plaintiffs'injuries (see Zuckerman v City of New York, 49 NY2d at 562). The affidavit ofEverfoam's expert, John S. Roberts, established that he possesses the "requisite skill,training, education, knowledge or experience from which it can be assumed that theinformation imparted or the opinion rendered is reliable" (Matott v Ward, 48NY2d 455, 459 [1979]; seeY.H. v Town of Ossining, 99 AD3d 760, 762 [2012]). Roberts's alleged lack ofexperience in the foam insulation business "is a factor which goes to the weight to begiven to his [or her] opinion, and not to its admissibility" (Espinal v Jamaica Hosp. Med.Ctr., 71 AD3d 723, 724 [2010]). The plaintiffs' contention that Roberts'saffidavit was not in admissible form and, therefore, should not have been considered, iswithout merit, since "the absence of a certificate of conformity for an out-of-stateaffidavit is not a fatal defect" (Fredette v Town of Southampton, 95 AD3d 940, 942[2012]).
Everfoam failed to meet its prima facie burden on its cross motion for summaryjudgment dismissing the cause of action alleging breach of contract (see Zuckerman vCity of New York, 49 NY2d at 562). Giving the contract its plain and ordinarymeaning (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]),Everfoam failed to establish, as a matter of law, that the contract provided it with anexclusive opportunity to cure any defects in the work and, therefore, it failed to establishthat the plaintiffs' failure to allow it to cure constituted a breach of contract barringrecovery. In light of Everfoam's failure to meet its prima facie burden, we need notreview the sufficiency of the plaintiffs' opposition papers (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]).
However, the Supreme Court erred in awarding summary judgment dismissingEverfoam's fourth affirmative defense alleging that the plaintiffs failed to mitigatedamages, based on its determination that "no such duty exists within the parties'contract." To the contrary, the duty to mitigate damages arising from a breach of contractis a duty that arises from common law and, therefore, need not be expressly bargained forin a contract to be enforceable (see Holy Props. v Cole Prods., 87 NY2d 130, 133[1995]; see Hamilton v McPherson, 28 NY 72, 76-77 [1863]). Accordingly,assuming liability, Everfoam should be entitled to limit damages, if any, if the plaintiffsfailed to make "reasonable exertions to minimize the injury" (Holy Props. v ColeProds., 87 NY2d at 133).
Finally, the third-party defendant, Baysystems North America, LLC (hereinafterBaysystems), the manufacturer of the foam insulation product installed by Everfoam onthe plaintiffs' property, met its prima facie burden of demonstrating its entitlement tojudgment as a matter of law dismissing the causes of action seeking common-lawindemnification and contribution, asserted by Everfoam against it in the third-partycomplaint (see Zuckerman v City of New York, 49 NY2d at 562). With respectto the cause of action seeking common-law indemnification, Baysystems established,prima facie, that Everfoam and its agents participated in the alleged [*3]wrongdoing and that the theory of liability was not purelyvicarious (see Ruiz vGriffin, 50 AD3d 1007, 1009 [2008]; Kagan v Jacobs, 260 AD2d 442[1999]). In opposition, Everfoam failed to raise a triable issue of fact (see Zuckermanv City of New York, 49 NY2d at 562). With respect to the cause of action seekingcontribution, Baysystems established, prima facie, that the design, manufacture, andlabeling of its foam insulation product did not cause or augment the plaintiffs' allegeddamages (see Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71NY2d 599, 603 [1988]; Charlesv William Hird & Co., Inc., 102 AD3d 907, 908 [2013]). In opposition,Everfoam failed to raise a triable issue of fact (see Zuckerman v City of NewYork, 49 NY2d at 562). Dillon, J.P., Chambers, Roman and Cohen, JJ., concur.