CBS Outdoor Inc. v California Surgical Inst.

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CBS Outdoor Inc. v California Surgical Inst. 2012 NY Slip Op 30689(U) March 15, 2012 Supreme Court, New York County Docket Number: 602200/08 Judge: Donna M. Mills Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPIIICMK C'OIJliT OF THE STATE OF NEW YOliK- NEW YOliK CXjIINTY PAIU PRESENT : DONNA M. MJLLS 58 Justicr P I ai n t ilf, -V- CALIFOI<NlA SURGICAL INS'HTU'I'E, a California coqmration, L)efendant. -. MOTIONC:AL No. - -_. . . Thc following papers, nuimbcred 1 to wcre r e d on this niotiun ,, , , , . , P A P E k S NIIMBLKXT) Notice ol'Motion/Ordcr 10 Show C'ausc-Al'lidavits- Exhibits .... Answering Affidavits- I <x i bi Is- ---h [ Jpon thc - " &.Y!L-"- - 5- - ~ forcgoing papcrs, it is ol-dcred that this motion is: I) ated : Check c1c 7 1: 1; I N A I, DISPO S ITION NON-FINAI l)TSPOS[TTON I [* 2] SUPIiEMl COURT OF HIE STATE OF NEW YORK COUNTY OF NEW Y O N : IAS PART 58 J ndex No. Plaintiff, 602200/0 8 -againstCA1,IFORNIA SIJI<GICAL INSTITUTE, a California corporation, Ikfcndant. X ___________________________________II___--_-_--_-_-____--_-_--------- DONNA MILLS, J.: Plaintiff moves for summary judgment on its breach of contract action, and for summary judgincnt dismissing defendant s counterclaim. Plaintiff provides outdoor advcrtising services throughout the United States. Defendant was one of its customers. During June and early July 2007, the parties ciitcrcd into four agreemeiits to place advertisements for defendant, three Bullcti n agreements and a non-space agreement, for a total cost of $80,000. Two of the Bulletin agreements, executcd on June 18, 2007, pertained to two identical billboard locations. I hcthird Bulletin agreement, executed on July 12,2007, pertained to f h r additional billboard locations. The non-space agreement, executed on June 29, 2007, pertained to production costs. On July 17, 2007, aftcr the billboards were installed, defendant complained about a partial obstruction involving one of the billboards, specifically, a wall partially blocking thc view. Plaintiff refers to this billboard as Billboard 57. Plaintiff alleges that it offered to providc dcfcndaiit with thrcc additional billboards, provided defciidant agreed to pay associated production costs i n thc amount of $3,000. As a result, the parties entcrcd into another Bulletin agrccnient, dated August 1 , 2007, and a relaled non-space agrecincnt, dated July 3 1, 2007 [* 3] (hereinalter called the Bonus Contracts). Plaintiff claims that, after its contractual performance, it sought and hiled to receive any payment from delendant lor its services. I hereafter,plaintiff cominenced this suit to recover its costs. The complaint is based 011 defendant s al lcgcd brcach of the &resaid agrcements. Pliiintilr seeks damages as well as attorney s lees pursuant to the terms of the agreements. In its answer, dcfcndant includes a countcrclaini based on breach of contract and negligence, alleging plaintiffs liability in allowing, in thc course of its performance, an obstruction which partially afTected the view ol the billboards. Defendant contends that scvcral billboards were partially obstructed due t o plaintiff s performance. Plaintiff moves for summary j udginent with respect to its complaint, arguing that thcre are no triable issues or f a t in this case. Plaintiff also niovcs for sunullary jiidgincnt dismissing thc counterclaim. Plaintiff contends that it had fully and adequately perfbrmed its serviccs and is entitled to paynicnt from dcfcndant. It points out the terms of the original agreements, specifically, a provision which offers contracl remedies in the event 01 obstructions; a provision requiring defendant to inspect bill boards for spccific defects within three days alter installation, and to notify plaintiff, within that period, of such defects; and a provision rcquiriiig defendant to make a writtcn objcction within15 days of receipt of an invoice, and defining a dclay of payment after thirly days as a default. Plaintiff was made awarc by dcfendant of a partial obstruction with rcspect to one billboard. Plaintill states that the wall causing the obstruction had bcen in place prior to tlic parties entering into the agreements, and that dekiidant s coinplaint occurred after the period when dekndant was allowed to inspect for defects. Ncvertheless, plaintiff statcd it 2 [* 4] would provide furthcr scrviccs fbr delendant, provided defcndant paid a slight production cost. Plaintiff argucs that the Bonus Contracts, which provide for the installation of additioiial billboards, represented an accord and satisflction. The accord and satislkction allegcdly disposed of defendant s complaints about thc obstruction, and precluded m y fiirthcr disputes which could have developed with respect to that obstruction. Plaintiff also argues that the accord and sritisfaction was a rnodifhtion of thc carlicr agreements, fully binding, and could only be rcscindcd or withdrawn by m u tiral assciit. PlaintilT asserts that this accord and satiskction precludes thc counterclaim since it resolves the obstruction coinplaint. Plaintiff also asserts that the counterclaim is lacking in specification, and fails to dcinonstrate dmiages. In addition to damages, plaintiflseeks reasonablc attorncy s fees, as provided in the agreements. Alternatively, plaintiff argues that, in tlic cvciit that there are any ficlual issues to be determined, plaintill is entitled to partial suminary judgment for all outstaiidi ng costs associatcd with the remaining billboards and agreements. Plaintiff is referring to serviccs pursuant lo thc first two Bulletin agreements and thc first non-space agreement, which plaintiff insist were fully performed rind unpaid for. In its opposition to this motion, defendant argucs, in a general way, that thcrc are issues relating to the obstructions, which it claims affcctcd scvcral bill boards. Delendant statcs that plaintill failed to iiistall billboards according to agreed-upon spccifications. It questions plaiiitilf s credibility and contends that plaintiff niiglit havc known about the obstructions prior to contract negotiations. Defcndant claims that pursuant to CPLR 2309 (c), an dfidavit exccutcd outside of New 3 [* 5] York I J I U S ~have a certiikate of conformity attached. According to delendant, the affidavit of plaintiffs counsel, Mr. Galtt, lacks this certificatc, and the entire allldavit iiiust be strickcn. Defendant argues that thc counterclaim has merit and the damages dcnianded exist, though not specilied at this timc. It asserts that a jury will determine the extent of damages upon defendant s presentation of the evidence at trial. lkfcndant notes that plaintilf docs not chal lengc thc ncgligence part 01 the countcrclaiim. In reply, plaintiff states that defendant 1ails to address the accord and satislaction claim at all in the motion papers. Plaintiff also states that defendant has fiiled to respond to the claim that its complaint about the obstruction was untimcly and that proper notice was never provided to plaintiff. Plaintiff contends that the opposition papers fail to cstablish m y issues regarding the obstructions, lailing to identify, by photograph or any other means, any obstructions to any of the billboards at bar. Plaintif1 maintains that thc lack of documentary cvidence shows that defendant cannot cstablish triable issues of fact which would prevent the granting of this motion. Plaintiff maintains its position that the counterclaim failed to substantiate any damages and states that its position applics to both the breach o l contract and negligence tlicories. Plaintiff averrcd that, in its interrogatories, it had requcsted from defendant a detailed cxplaiiatioii of thc cxtcnt and nature of the damages. Llcfciidant hiled to provide this information. According to plaintill, while delendant rcscrvcd the right to supplement its discovery responses, there have been no supplcnicnts to date. Plaintif ¬ submits a copy of a certificate of conl omiiiy regarding Mi-. Galtt s affidavit. IJpon examination o l this certificatc, tlic court will not strike Mr. Galtt s afkldavit. The proponent of a niotion for sunimary judgment must demonstrate that there arc no 4 [* 6] inaterial issues of fact in dispute, and that it is entitled to judgment as a inalter of law. Dullas- Stephcnson v Wuisman, 39 AD3d 303, 306 ( l q tDept 2007), ciling Wiiiegradv New York University Medicul C enter, 64 NY2d 8 5 1 , 853 (1985). Upon prof ¬er of cvideiice establishing a prima facie casc by the movant, the party opposing a motion for summary judgment bears thc burden of produc [ing] evidcntiary proof in admissible form sufficient to require a trial o l material questions offdct. P c n p k v &usso,, 5 0 AD3d 535, 545 (ITt ZOOS), quoting Dept %uckermm 17 C ity of Now Yo& 49 NY2d 557, 562 (1980). If thcre is any doubt as to the cxisteiice of a triablc issue ol hct, sunmary judgmcnt must be dcnied. Rotzrhir Ertrrziders v Ccppos, 46 NY2d 223 (1978). Sununary judgnient permits a party to show, by al lidavit or other evidence, that there is no material issues of Fict to be tricd, and that judgmcnt may be dirccled as a matter of law, thcreby avoiding needless litigation cost and delay. Brill v l J i qf New Yurk, 2 NY3d 648, 65 1 ~ (2004). L L B e summary judgment is a drastic nicasure that deprives a party oi her day in ~ a ~ ~ ~ court, it may be granted only if no genuinc triable issue of fact is presented. Grov,smnn v Arnal~umutcd Housing (- orp.,298 AD2d 224, 226 ( lbtDept 2002), citing Ugurriza v Schrnieder, 46 NY2d 471 (1979). In constniing the terms of a contract, the judicial function is to give effect l o the parties intentjons. Federal Inns. Co. v Arnericus I m . Co , 258 AD2d 39, 44 (1 Dept 1999). In thc Bulletin agreements, thcrc is a Paragraph 7, which provides thc following: AdverliserlAgency [defendant] shall inspcct the display within thrcc (3) days after installation. Unless within such period, Advertiser/Agcncy gives written noticc to Cornpaiiy Iplaintiff] specifying any defcct, the display shall be conclusively presumed to have bccii inspected and approved by 5 [* 7] Ihrp., 257 AU2d 21 8 , 223 (1 Dept 1999). lJnlike contract law, where noniiiial damages arc always availablc, actual dariiages arc an csscntial aspect o l a iiegligcnce claim ... [internal citations omitted]. Mizrcihi v 7;Zic, 266 AD2d 59, 59-60 (1 13cpt 1999). Sincc thc only argument for dismissal involves darnagcs, the court will decide if defcndant has lcgal grounds for bringing its counterclaim. In suing for negligcncc, defendant has not responded to plaintill s requcst for prooP ol damages. Said damages have not been speciikd at this timc. I his aspect of the cnuntcrclaini shall be dismissed. As [or breach of contract, damages, though lcss dircct, must still be allcgcdly foreseeable. Thesc damages arc supposed to be based on plaintiffs allcged failure to perform according to agreed-upon terms in tllc agreements. However, defendant has failed to dispute or discuss plaintiff s documented argumcnt of untimely objections to the work, i t . , failure to objcct timely to invoices, and has tlicrcforc waived its rights iriidcr thc agreements. Plaintif l hasmade its case for summary judgmciit and is entitled to damages, as wcll as attorney s fees pursuant to the agreements, along with the dismissal of thc counterclaim. Accordingly, it is ORI3KIED that plaintiff CJ3S Outdoor Inc. s motion lor suiiixnary judgment on thc complaint is granted and the Clerk is directcd to cntcr judgment in favor of phintif i aiid agairist defendant California Surgical lnstitutc in the amount of*$496,527,togcther with interest at the rate o l 9 % per airnuin from tlic date of July 15, 2008 until the date of tlic decision on this motion, and thercafter at thc statutory rate, as calculakd by the Clcl-k, together with costs and disburscments to bc taxcd by the Clerk upon submission of an appropriate bill ofcosts; and it is further 8 [* 8] ORDERED that the issue of attorney's fees is referred to a Spccial Kcferee to hear and report with recoiiiiiicnd~tions, exccpt that, in the event of and upoii the filing o f a stipulation 01. the partics, as permitted by CPLR 43 17, the Spccial Referee, or anothcr person designated by the parties to serve as rcfcrce, shall detcrniine tlic aforesaid issue; and it is furthcr OKIIERED that this motion is held in abcyance pending receipt O [ the report and rccomiiicndations of tlic Special Referee and a motion piirwmt to CPLR 4403 or receipt of the deterinination of tlic Special Referee or tlic desigiiatcd reftree; and it is further OIWERED that counsel for the party seeking or, absent such party, couiisel for thc plaintiff shall, wihin 30 days lkom the date ofthis ordcr, serve a copy of the ordcr with notice of entry, together with a completed In1brmation Sheet, upon thc Special Referee Clerk in the Motion Support Office in hn.I 19 at 60 Centre Street, who is direct to place this mattcr on tlic calendar o l the Spccial Referec's Part (Part SOR) for the earliest convenient date; and it is iirrtlicr ORDGRUI) that plaintiff's iiiotion to dismiss defendant's couiiterclaim is graiitcd; aiid it is F \ \ E0 :a.a further ORDERED that thc Clerk is directed to cnter judgincnt accordingly. DATED: 9 , ~~R 2 ,-:,\I ~ SH.lY a 1N ' 1 ('" - "* r; \ -2 .I (-JFF\CE ,\i\c [* 9] Advertiser/Agcncy for all purposes, whatsocvcr . , , , Here, plaintiff claims that delendant s complaint about thc partial obstruction with rcspcct to Billboard 57 was untimely pursuant to the tcrms of thc agrcements. Therefore, defcnd,mt waived its disapproval of the obstruction. There is no evidence of defcndant disputing plaintiffs claim, and thc court finds the evideiice favorahlc to plaintilf. Furthcrniorc, plaintiff agrccd to a iicw agrccincnt with defendant, in order to maintain goodwill. This resulted in the execution of the Bonus Contracts, copies of which are subniittcd by plaintilf: Plaintilr acknowledges the existence of an obstruction problem after completing its work. It is plaintiff s position that thcsc contracts constitute an accord and satisl:;lction, which modificd the former contractual terms between the parties. In effect, it allcgedly represented a resolution o l the obstruction problem, and perniittcd plaintiff to recover for services rendered without any further coiiceriis about whether or not a breach occurred. The doctrine of accord and satisfaction contemplates full knowlcdge of the i k l s on the part of both parties who, in eflect, enter into a new contract to expeditiously settle a contract dispute. Progressive Northern Ins. Cn. v North Stcttc. Autobahn, lnc., 71 AD3d 657, 658 (2d Dept 201 O), citing Honz Wdcrproqfing Curp. v Bushwick Iron 13 Steel Clo., 66 NY2d 32 I , 325 (1985). An cssential elelllent of an accord and satisfaction is a clear manifestation of intent by one tcndering less than lull payment o l a n unliquidated claim that the payment has been sent in full satisfaction of the disputed claim [internal quotation masks and citations omitted]. Complete Messenger B Trucking C: orp. v Mtlrrill Lynch Money Murkels, Inc., 169 AD2d 609, 610-11 (1 Dept 1991). The Bonus Contracts indicate approval by the parties of plaintiff s installation of three additional billboards. Dcfcndant also sigiicd the agreement in which it would pay plaintif1 6 [* 10] $3,000 in additional costs. Nowhere in its opposition papers does defendant dispute or evcn address thcsc subscqiient agreements. Defendant states that it did not agree to pay for the obstructed billboard, but does not address the issuc of the timeliness of its complaint. Defendant's assertion that it did not rcccivc tlic additional billboards at no cost, is not substantiated, since the documcntary proof shows that it approvcd tlic $3,000 chargc for the installation of these billboards. As for tlic othcr issues raised by defendant, there is a failure to particularize its ob-iections. While dcfcndant rcfcrs to partial obstructions to iiiorc than one of the billboards, there is no mention of the location of thesc billboards, or the specific problem connected with them, with the exception of Billboard 57. While defendant contends that plaintiff failed to providc a good quality of perhrmance, there is 110 indication that it objected to plaiiitift s bills in a niaiincr pursuant to the terms of the agrecmcnts. The court h d s that plaintiff has niadc out ai1 accord and satisfaction. Plaintill has submitted evidence which indicates that tlic partics agrccd to the terms of thc new agreements. There is no prool that del endaiit inadc any timely objections to plaintiffs work and it has waived the making of furlher objections. Therefore, dcfciidant is obligated to pay for those services rendered. Plaintin also seeks dismissal of the countcrclaim, specifically because of thc alleged failure to substantiate damages suffered by defcndant. Ikfciidant argues that it has suffered actual daniagcs, but the extent of tlicin need not be elucidated at this time. In contract law, damages for brcach must not bc spcculative, and must bc gcnerally foreseeable, i.e., within the contemplation of the contracting partics. Diniczc v Grqfff,S tudio.s 7

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