Town of Smithtown v Beechwood Tiffany, LLC

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Town of Smithtown v Beechwood Tiffany, LLC 2012 NY Slip Op 32859(U) November 28, 2012 Sup Ct, Suffolk County Docket Number: 45644-09 Judge: Elizabeth H. Emerson 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] AMENDED SHORT FORM ORDER INDEX NO.: 45644-09 SUPREME COURT - STATE OF NEW YORK COMMERCIAL DIVISION TRIAL TERM, PART 44 SUFFOLK COUNTY IlRESENT: Honorable Elizabeth H. Emerson MOTION DATE: _________________ .x TOWN OF SMITHTOWN, 4-15-12 SUBMITTED: 7-5-12 MOTION NO.: OOI-MOT D Plaintiff, DEVITT SPELLMAN BARRETT, Attorneys for Plaintiff 50 Route 111 Smithtown, New York 11787 -against- BEECHWOOD TIFFANY, LLC and UTICA MUTUAL INSURANCE CO., Defendants. LLP ROSENBERG, CALICA & BIRNEY LLP Attorneys for Defendants 100 Garden City Plaza, Suite 408 Garden City, New York 11530 -3ndROSEMAR CONSTRUCTION, INC., Third Party-Defendant, PLANNING BOARD OF THE TOWN OF SMITHTOWN, Additional Counterclaim Defendant. ___ x Upon the following papers numbered 1-18 read on this motion for summary judgment; Notice of Motion and supporting papers ~; Notice of Cross Motion and supporting- papers~_; Answering Affidavits and supporting papers 16·17 _; Repl)'ing Affidavits and supporting papers ---.1JL; it is, ORDERED that the branch of the motion by the defendants Beechwood Tiffany, LLC, and Utica Mutual Insurance Co. which is for judgment as a matter of law on their counterclaim pursuant to CPLR 7803 (3) to annul Resolution 2009-1021 of the Planning Board of the Town of Smithtown is granted; and it is further [* 2] Index No.: 45644-09 Page 2 ORD/::RED that the motion is otherwise denied. The defendant Beechwood Tiffany, LLC ("Beechwood"), is the sponsor and developer of a 20~acre. 88-unit townhouse development located m Smithtown, New York. In acconlancc with Town Law § 277 and the Smithtown Town Code, the Town of Smithtown (the "Town") required Beechwood to tender a perfonnance bond in the penal sum of $616,897 and a cash deposit in the amount of $3,000 to guarantee the construction of certain infrastructurc improvcments such as streets, sidewalks, drainage, and roadways. On December 3], 200 I, the bond was executed by Beechwood, as principal, and Utica Mutual Insurance Co. ("Utica"). as surety. Beechwood hired the third-party defendant, Roscmar Construction, Inc. ("Rosemar"), 10 perform the work. The roadways were to be constructed in accordance with the Town's specifications for public improvement, which incorporated the specifications of the New York State Department of Transportation (NYSDOT). In a letter to Rosemar dated November 28, 2006, which was copied to Beechwood, among others, the Town Engineer advised Rosemar that, after several sitc visits and a rcvicw ofthc relevant documentation, the Town could not approve the final lift of pavement for the following reasons: 1. 2. 3. The material does not meet NYSDOT specifications for aggregates, Section 703, as amended by NYSDOT Engineering Instruction (EI) 03-042 (copy attached). This topic is addressed in further detail, below. Periodic field inspections have revealed that the bituminous mix used for the top course contains large pieces of glass, which arc present in a wide variety of colors. The final Ii11 has also unraveled (and continues to do so as the pavement ages) leaving the roadway rulted, and in some places (particularly in cuI-dc-sacs and along bends) with no top course left at all. In its present condition, the Superintendent of Highways will not sign off on the roads nor accept them for dedication. While the laboratory tests from both Advance Testing (Report No. 040115, dated 9/12/06) and Soil Mechanics Drillmg Corp. (Report dated 5/3/06) indicated that the grain size distribution met specifications for NYSDOT 7F Top Course, both analyses mdiealed that glass (on the order of 2%-3%) was present in the mix used for the top course. In the past, NYSDOT Speel [ication 703-02, Coarse Aggregate, [* 3] lnuex No.: 45644-09 Page 3 allowcd up to 5.0% glassy pieces in the mix. On Novcmber 21, 2003, however, the NYSOOT issued Engineering Instruction (EI) 03-042, which deleted Table 703-3, and replaced it with a new table (with the same number), which specifically removed "glassy pieces" from the allowable materials. We have confinned this intcrpretation of the applicable rules with staff at NYSDOT's Materials Bureau, and we have concluded that these requirements vv·erein place prior to the placement of the material in question. We therefore require that the final lift of asphalt pavement be removed in Its entirety and replaced with new material that is in full confonnance with NYSDOT's latest requirements for Type 7F Top Course. Bya letter dated December 8, 2006, which was copied to Beechwood, among others, Rosemar responded to the Town as follows: First, we disagree with your premise that the material docs not mcet the New York State Department of Transportation (NYSDOT) specification for aggregates. The Town of Smithtown required the asphalt pavement to confonn to NYSDOT specifications. The asphalt that was placed on these roads was manufactured in a NYSDOT approved asphalt plant, with NYSDOT approved materials. Your lettcr of 11/28/06 refcrenccd a NYSDOT Engineering Instruction (EI) 03-042. You point out that "glassy pieces" were removed from the table. You realize that "glassy pieces" were listed in crushed slag materia!. This is the material that New York State removed the term "glassy pieces" from. Our asphalt manufacturer did not purchase any cmshed slag. They manufactured asphalt with crushed stone and/or cmshed gravel. Neither of these items was allowed "glassy pieces" in them before or aftcr El 03-042. Our coarse aggregate source would not have been the source for the glass pieccs. In addition our asphalt plant did not have a stockpile of glass that would be incorporated into the asphalt mix as a substitute aggregate. The reason the glass was in the mix is because it was part of the fine aggregate supply. The source o[the fine aggregate was [* 4] Index No.: 45644-09 Page 4 Grimes Contracting, Riverhead New York. When New York State approved this material the sample showed excessIve amounts of deleterious materia!. At least some of this material included glass. Apparently NYSDOT did not consider there was enough glass to be an injurious amolU1t in the mixture of Hot Mix Asphalt. Trace amounts of glass were therefore deemed acceptable for use in the manufacture of Hot Mix Asphalt in accordance with New York State Standard Specifications. Again, the asphalt placed on these roads confom1s to New York State Specifications. That is the guideline that the Town or Smithtown gave us to follow and those were the guidelines we followed. The second reason in your letter stated that the roadway is rutted and some places have "no top course left at all". Your letter states that "particularly in the cul-de-sacs" this is the case. We disagree with that premise. After a number of site visits wc do not see the final lift unraveled leaving the pavement with no top course, especially in the cul-de-sacs. Some of this top pavement has been in place for more than two years. In our opinion it looks like a typical asphalt pavement roadway that is over two years old. This pavement has held up under normal everyday usage since it has been in place. Again, we do not see the final lift unraveled leaving no top course at all. That is not the case with these roads. The third reason you listed for not approving the final lift of pavement was that the Superintendent of Highways would not sign off on them. We believe that since the material in place confonns to NYSDOT specifications (and therefore Town of Smithtown specifications) and that there is no unraveling of the roads that the Superintendent of Highways should sign off on the roads and accept them for dedication. Bya letter dated July 10, 2008, which was copied to Utica, alllong others, the Town Engineer advised Beechwood that its performance bond had expired and that it still had not remedied the issue of sub-standard paving at the site. The Town Engineer stated, in pertinent pari, as rollows: [* 5] Index No.: 45644-09 Page 5 As outlined in my letter of November 28,2006, we have rejected the final lift of asphalt. At our meeting of April 4, 2008, you agreed to propose a solution to this problem. Again, we have heard nothing in this regard. Kindly make arrangements to extend your Pcrfonnance Bond and have the necessary paving work accomplished so that we might be able to accept the public improvements. At such time as you have scheduled the necessary work, please notify the Engineering Department at least 72 hours prior to the commencement of said work so that an inspection can be made while work crews are at the site. I'ailure to complete all of tile unfinished items within 45 days oC the receipt of this letter will leave us no other option but to declare the Performance Bond in default and initiate litigation. On December 1,2009, the Smithtown Town Board (the "Town Board") adopted Resolution 2009-1021 declaring the perfomlance bond and cash deposit posted by Beechwood to bc III default and authorizmg the Town Attorney to commence litigation on the bond pursuant to the recornmendation of the Engineering Department. This action to recover the penal slim or $6 1().897 under the bond and the $3,000 cash deposit ensued. Beechwood and Utica counterclaimed against the Town and the Town Board (1) for a judgment declaring that the roadways had been constructed in accordance with all applicable requirements of tile perform<lnce bond, approved plans, and NYSDOT standards and (2) for a judgment pursumlt to CPUZ article 78 compelling the Town and the Town Board to release and cancel the performance bond (CPLR 7803 [I]) and declaring Resolution 2009-1 021 to be null and void (CPLR 7803 [31). Hccchwood and Utica now move for summary judgment dismissing the complalllt and for summary judgment on their counterclaims against the Town and the Town Board. In oPf'osition, the plainti ff contends, inter alia, that the counterclaims are barred by the statute of limitations and by the moving defendants' failure to lile a notice of claim pursuant to Town Law 65. * The plaintiff has waived the statute-of-limitations defense by failing to raisc it in a 111otion dismiss pursuant to CPLR 3211 or as a defense in its reply (see, CPLR 3211 [e]; Siegel, to PractIce COll1mentaries, McKinney's Cons Law of NY, Book 7B, C32l J :62, C32l2'20)_ In ,lilY event, a counterclaim is decmed interposed at the same time as the complamt (see, Splinters, Inc. \' Greenfield, 63 AD3d 717. 719). The moving defendants' counterclaims werc interposed on December 11,2009, when the complaint was filed. Accordingly, the court finds that they ~re not time-h<lrred. Thc Iiling of a notice of claim pursuant to Town Law § 65 (3) IS a condition precedent to the maintenance of an action against a town arising out of a contractual relationship between a plaintilTand a town (see, McCulloch v Town of Milan, 92 AD3d 734,735). [* 6] Index No.: 45644-09 Page 6 Llkc\'v"isc,the tllncly tiling of a notice of claim pursuant to Town Law § 65 (3) is a condition precedent to the maintenance of a counterclaim against a town sounding in contract (see, Town of Nassau v Westcheste.- Fi.-e Ins. Co., 281 ADld 803, 804-805; Ha.-t v East Plaza, Inc., 62 AD2d 113, 117). The moving defendants' counterclaims against the Town seck the release of the perfonnance bond. Beechwood was required to post a performance bond pursuant to statute (see, Town Law § 277 [b); Smithtown Town Code § 248.17 et seq.), and not pursuant to any contract or agreemcnt with the Town. Since the counterclaims are not based upon a contract lawfully made with the Town (see, Town Law § 65 [1]), the notice-of-claim requiremcnt found in Town Law § 65 (3) is inapplicable. Smithtown Town Code § 248.18 provides, in pertinent part, as follows: In the event that the public improvements covered by the performance bond and cash deposit have not been constructed to the satisfaction of the Town Engineer and Town Highway Superintendent, they shall forward, within 30 days of the inspection, a written reportjomtly signed by representatives of their departmcnts to the subdivider, giving him a period of six months or less within which time he has to complete said pubhc improvements to their satisfaction. rf, upon the expiration of this period, thc public improvements have still not been completed to the satisfaction of said Town Engineer and Town Highway Superintendent, or additional items arc uncovered which are incomplete, a second written report will be sent to the subdivider wherein he Will be given 45 days or less to complete the enumerated items. If, at the expiration of the second period, thc public improvcments still have not been completed to thc satisfaction of the Town Engineer and Town Highway Superintendent as stated aforesaid, then the Town Board may declare the performance bond and cash deposit in default. It is undisputed that the plainti ff failed to comply with the aforementioned requirements before declaring the performance bond and cash deposit in default. The record rellects that it was the Town Engineer who advised Beechwood by a letter dated Novcmber 28, lOOG, that the roadways had not heen constructed to the Town's satisfaction. The Tovvn rl1glnvay Superintendent was not a signatory to that letter, nor was he a signatory to the second letter dated July 10, 2008, which advised Beechwood that it still had not remedied the issue of sub-standard paving at the site. Resolution 2009-1021 declaring the performance bond and cash deposit posted by Beechwood to be in default was adopted on December 1,2009. It was based on the rccommendation of the Town Engincer and not ajoint written report signed by the Town Engineer and Town Highway Superintcndent, as required by Smithtown Town Coele § 248.18. By relying on the recommendation of the Town Engineer alone, the Town Board's resolution was made or violation of lawful procedure (CPLR 7803 [3]). The Town Board lacked the authority to [* 7] Index No : 45644-09 Page 7 consIder and determine whether the performance bond and cash deposit were in ddau1t wiLhoul receiving and reviewing the required joint report of the Town Engineer and Town Highway Supenntendent (see, Matter of Bayswater Gracewood, LLC v Planning Rd. of Inc. Vii. of N. Hills, 19 AD3d 411,412; see also, Matter of\Vright v Town of La Grange, 181 Mise 2<1625, 630-634). Accordingly, the branch of the motion which is for a judgment pursuant to CPLR 7803 (3) ckclanng Resolution 2009-1021 to be null and void is granted. A party moving for summary judgment must make a prima facie showing or entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (Winegrad v New York Univ. Mcd. etf. ()4 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562). The failure to make slIch a showing requires denial of the motion regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. etr., supra). The purpose of a perfomlance bond is to ensure, not only completion or tile work, but that the work is of satisfactory quality (see, Town of Chester v Republic Ins. Co., 89 AD2d 959). The moving defendants have failed to establish, prima facie, that the roadways were of satisfactory quality and constructed in accordance with NYSDOT standards. In support oftllcir contenlIol1 that the roadways were properly constructed in accordance with NYSDOT standards, the pluintiffrelies on the December 8, 2006, letter authored by its roadway contractor, Roscmar, and e-mails from NYSDOT engineer William Skerritt that, in his opinion, the Town has Illlsinterpreted EI03·042. Such evidence is unswom and not in admissible f0n11. In any event, even if the court were to consider such evidence, the conflicting opinion oftne Town Engineer (which is also unsworn and not in admissible form) raises issues of fact. When experts afTer conflicting opinions, a credibility question is presented requiring ajury's resolution (see, Shields v Baktidy, II AD3d 671, 672). Accordingly, the branches of the moving defendants' motion which are for summary judgment dismissing the complaint and for judgment as a matter of lnw on t!lCll- declaratory judgment and CPLR ruticle 7803 (1) counterclaims are denied. llated: November 28, 2012 \olON. ELIZABETH HAZlITT EMERSOr. J.S.c.

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