Blue Water Envtl., Inc. v Incorporated Vil. of Bayville
Annotate this CaseDecided on September 21, 2006
Supreme Court, Nassau County
Blue Water Environmental, Inc., Plaintiff,
against
Incorporated Village of Bayville, New York, Defendant.
15809-04
COUNSEL FOR PLAINTIFF
Westerman, Hamilton, Sheehy, Aydelott & Keenam, LLP
Garden City Center - Suite 502
100 Quentin Roosevelt Boulevard
Garden City, New York 11530
COUNSEL FOR DEFENDANT
Feinstein & Nisnewitz, P.C.
42-40 Bell Boulevard
Bayside, New York 11361
Leonard B. Austin, J.
Defendant Incorporated Village of Bayville, New York ("Village") moves to renew and reargue so much of this Court's order of June 14, 2006 as awarded Plaintiff Blue Water Environmental, Inc. ("Blue Water") partial summary judgment on its breach of contract claim in the sum of $159,034.50, together with interest from April 7, 2005.
BACKGROUND [FN1]
On Village's motion for summary judgment dismissing the complaint, the Court searched the record and granted partial summary judgment to Blue Water for the principal sum of $159,034.50 which corresponds to the unpaid portion of the contract price.
In its motion for summary judgment, Village requested an order "dismissing all claims in the complaint except for the sum of $159,034." Village argues that because it did not seek relief with respect to the unpaid balance on the contract, the Court was not authorized to grant partial summary judgment as to that claim.
DISCUSSION
A.Reargument
CPLR 3212(b) provides, "If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion."However, because a motion for summary judgment must be addressed to one or more specific causes of action or defenses, a court may search the record and grant summary judgment in favor of a non-moving party "only with respect to a cause of action or issue that is the subject of the motions before the court." Dunham v. Hilco Construction Co., 89 NY2d 425, 429-30 (1996). In Dunham, the Court of Appeals held that where a defendant moves for summary judgment with respect to a claim based on a violation of the Labor Law § 240, the court may not grant summary judgment as to a non-moving defendant with respect to a negligence claim. Since a violation of Labor Law § 240 gives rise to strict liability, a summary judgment motion addressed to a Labor Law claim would not require plaintiff to make a showing of negligence. See, Bauer v. Female Academy of the Sacred Heart, 97 NY2d 445, 451 (2002).
The amended complaint asserts two causes of action, the first for breach of contract and the second for quantum meruit. More specifically, the first cause of action alleges three specific breaches: (1) failure to pay delay damages in the amount of $436,128.37; (2) failure to pay $13,767.88 for extra work; and (3) failure to pay $159,034.50 for work performed under the contract.
The elements of a cause of action for breach of contract are (1) the existence of a contract; (2) performance by plaintiff; (3) breach by defendant; and (4) damages. Furia v. Furia, 116 AD2d 694 (2nd Dept. 1986); and PJI 4:1. See also, Rattenni v. Cerreta, 285 AD2d 636 (2nd Dept. 2001). In moving for summary judgment with respect to Blue Water's claim for breach of contract, Village might have argued only that it did not breach and reserved the issue of whether Plaintiff had fully performed under the contract. However, in seeking summary judgment with respect to the delay damages [*2]portion of Blue Water's breach of contract claim, Village expressly conceded that all work was fully completed on April 7, 2005. (Aff. of Donald Sioss, ¶ 25).
Moreover, CPLR 3015(a) provides that a denial of performance shall be made specifically and with particularity. In its answer, Village alleged only in general terms that, "Plaintiff has not completed the contract within the time specified and pursuant to [the] terms of the contract." (Answer ¶ 53). Because Village conceded the issue of Blue Water's due performance both in its answer and on the summary judgment motion, this Court was well within its discretion in granting partial summary judgment to Plaintiff. Since Village has not established that the Court overlooked or misapprehended any matter of fact or law, (Carrillo v. PM Realty Grp., 16 AD3d 611 [2nd Dept. 2005]; and Hoey-Kennedy v. Kennedy, 294 AD2d 573 [2nd Dept. 2003]), it's motion for reargument must be denied.
B.Renewal
CPLR 2221(e) provides that a motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the determination. The motion must contain reasonable justification for the failure to present such facts on the prior motion. See, Kaufman v. Kunis, 14 AD3d 542 (2nd Dept. 2005); and Yarde v. New York City Transit Auth., 4 AD3d 352 (2nd Dept. 2004).
In support of the motion for leave to renew, Village claims, for the first time, that it is entitled to two additional offsets against the contract price. It asserts an offset in the amount of $22,760, representing the cost of reinstalling certain pilings at the marina. After Blue Water removed the original pilings, Village decided to reconfigure the marina and have the pilings reinstalled by another contractor. (Moving Papers Ex. F and G).
Blue Water argues that the offset is improper because reinstallation of the pilings was not required under the contract. However, Village's engineer ruled that Blue Water was not entitled to extra compensation for removal of the pilings because the cost of removal and reinstallation of the pilings was included in the contract price. In its prior decision, this Court held that the engineer's ruling with regard to extra payment is binding upon Blue Water (June 14, 2006 Order p. 11). Village argues that because the cost of reinstallation was included in the contract price, it may deduct the cost of this work which was not performed by Blue Water.
The Court concludes that the cost of reinstalling the pilings is not a proper offset because it was Village which directed Blue Water not to reinstall the pilings. Whether a contract is entire or divisible is a question of the parties' intention, to be determined by the language used and the surrounding circumstances at the time of the contract. Christian v. Christian, 42 NY2d 63, 73 (1977). While the parties to a construction contract may make it divisible and stipulate to a value of each divisible part, a construction contract is ordinarily an entire agreement. New Era Homes Corp. v. Forster, 299 NY 303, 306-07 (1949).
This public works contract to renovate the Mill Creek Marina was an entire agreement. The instructions for bidders, which was made a part of the contract provided, "While separate prices are required for various items under this contract, it is understood the contract will be awarded as a whole unless otherwise indicated in the proposal." Additionally, the contract provided, "The contractor agrees to be responsible [*3]for the entire work embraced in this contract" (Contract ¶ 35). Village was free to reconfigure the marina and hire another contractor to reinstall the pilings. However, because the contract was not divisible, Village was not entitled to deduct the cost of reinstallation from the contract. Thus, the cost of reinstallation of the pilings is not a proper offset.
Village also seeks to deduct liquidated damages of $500 per day for 121 days, which it claims is the amount of extra time in which it took Blue Water to perform the contract. Thus, Village asserts that it is entitled to deduct $60,500 for liquidated damages. Blue Water maintains that liquidated damages may not be assessed because the delay was caused by weather conditions outside its control and directives from regulatory agencies.
Village had reasonable justification for not presenting the facts concerning its calculation of liquidated damages because it believed that the outstanding balance was not in issue on the summary judgment motion. Since factual questions are presented as to the extent of the delay and whether Blue Water was responsible for it, the amount of any offset under the liquidated damages provision must await the trial of the action.
Accordingly, it is,
ORDERED, that Defendant's motion to reargue is denied; and it is further,
ORDERED, that Defendant's motion to renew is granted. Upon renewal, the sum awarded to Plaintiff as part of this Court's award of partial summary judgment shall be subject to offset upon the trial of this matter with regard to Defendants claim for liquidated damages for delay; and it is further,
ORDERED, that in all other respects, this Court adheres to its decision and order of June 14, 2006; and it is further,
ORDERED, that counsel for the parties shall appear for a status conference on October 20, 2006 at 9:30 a.m.
This constitutes the decision and Order of the Court.
Dated: Mineola, NY_____________________________
September 21, 2006Hon. LEONARD B. AUSTIN, J.S.C.
Footnotes
Footnote 1: For a full discussion of the factual background of this matter, pp. 2-8 of this Court's Order dated June 14, 2006.
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