Onekey, LLC v Byron Place Assoc., LLC

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Onekey, LLC v Byron Place Assoc., LLC 2017 NY Slip Op 33460(U) December 13, 2017 Supreme Court, Westchester County Docket Number: Index No. 52144/15 Judge: Lewis J. Lubell Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 12/13/2017 11:43 AM NYSCEF DOC. NO. 203 - INDEX NO. 52144/2015 RECEIVED NYSCEF: 12/13/2017 , SCP 1/23/18. 1/23/18 • 9:15 a.rn. a.m. To commence commence the 30 day day statutory statutory time period for appeals as of right right time period for.appeals (CPLR 5513 [al) , · you 5513[a]),. you are advised advised to, to, serve aa copy copy of this this order, order, with with serve notice of entry, upon upon all parties notice parties // SUP~EME COURT COURT OF THE THE STATE STATE of NEW NEW YORK YORK SUPREME COUNTY OF WESTCHESTER WESTCHESTER COUNTY _____________________________ ~--------X -----------------------------~--------x ( ONEKEY, LLC, ( DECISION DECISION & & ORDER ORDER Plaintiff, Plaintiff, Index Index No. 52144/15 52144/15 -against_ --against. Sequence No. 6&7 Sequence •• BYRON BYRON PLACE PLACE ASSOCIATES, ASSOCIATES, LLC, Defendants. Defendants. -----------.-~-------------~----------X -----------·- ----------- ----- ----x I LUBELL, JJ.'.'' LUBELL, . following papers were considered considered in connection connection with with Motion Motion The following papers were Sequence by defendant Sequence #6 by defendant Byron Byron Place Place Associates, Associates, LLC LLC for an Order Order granting summary summary judgment CPLR 3212, declaring declaring that that granting judgment pursuant pursuant to CPLR plaintiff breached breached its contract, dismissing the complaint and plaintiff contract, dismissing complaint and setting the matter matter down,__,for down",ior an inquest inquest on damages; damages; and and Motion Motion setting Sequence by plaintiff plaintiff for an Order the entry Sequence #7 by Order directing directing entry of partial summary judgment lin /in favor plaintiff and partial summary judgment favor of plaintiff and against against defendant defendant Byron Byron Place Place A$sociates, A$Sociates, LLC LLC for ·the -the relief relief demanded· demanded- i~ i~ verified complaint complaint as to liability, liability, upon upon the ground ground that that Byron Byron the verified breached construction contract: contract: breached the construction rr PAPERS PAPERS NOTICE MOTION/AFFIDAVIT/EXHIBITS A-O/ NOTICE OF MOTION/AFFIDAVIT/EXHIBITS A-O/ AFFIRMATION/EXHIBITS A-D AFFIRMATION/EXH!BITS A-D ((FIEST FIE.ST NIAGARA NIAGARA _STIPULATION OF DISCONTINUANCE .STIPULATION DISCONTINUANCE AND TITAN) AND MEMORANDUM IN MEMORANDUM OF LAW IN OPPOSITION/AFFIDAVIT OPPOSITION/AFFIDAVIT SUPPORT/AFFIRMATION OPPOSITION/ SUPPORT/AFFIRMATipN IN OPPOSITION/ EXHIBITS . ,/ EXHIBITS 1~5 1-5 -REPLY AFFIDAVIT/MEMORANDUM LAW REPLY AFFIDAVIT/MEMORANDUM OF LAW NOTICE MOTION/AFFIRMATION/AFFIDAVIT/ / NOTICE OF MOTION/AFFIRMATION/AFF.IDAVIT · . MEMORANDUM MEMORANDUM OF LAW/AFFIRMATION/ LAW/AFFIRMATION/ EXHIBITS . EXHIBITS . . AFFIDAVIT IN OPPOSITION/EXHIB:I;TS OPPOSITION/EXHIBITS A-D AFFIDAVIT A-b MEMORANDUM OF LAW LAW IN REPLY/AFFIRMATION REPLY/AFFIRMATION .MEMORANDUM IN REPLY/EXHIBitS . REPLY/EXHIBITS [* 1] 1 of 4 NYSCEF NYSCEF 116-137 116-137 138,139 138,139 140-151 140-151 152,153 152 ,. 153 · 154-171 154-171 174-183 174-183 184-196 184 -1.96 INDEX NO. 52144/2015 FILED: WESTCHESTER COUNTY CLERK 12/13/2017 11:43 AM NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 12/13/2017 manage r, uction manager, a constr ey") a Plaintiff, ("OneKey") construction OneKey , LLC, ("OneK Plaint iff, OneKey, proper ty t agains action brings this breach of contract action against property contra ct breach this brings in "BPA") ( LLC, ("BPA"),, in Associ ates, LLC, owner Place Associates, Byron Place defend ant Byron develo per, defendant owner//developer, as ct, writte n contra connection dispute arising arising out of aa written contract, as with aa dispute tion with connec condom inium ntial reside 149 a amended, for the construction of a residential condominium uction constr amende d, for the New ont, New Larchm Byron 10 at development and parking facility Byron Place, Larchmont, y facilit develop ment and parkin g ct. contra of breach for York. counterclaims breach contract. rclaim s BPA counte turn, BPA In turn, York. In ct, as breach ed the contra In short, OneKey One Key claims claims that BPA contract, as BPA breached In short, fact, in when, cause" "for ct amended, upon terminating the contract "for cause" when, in fact, contra ating termin upon d, amende the that aspect perform that One Key was aspect of of the obliga ted to perform longer obligated no longer was no OneKey claims hand, claims other hand, contract it allege allegedly BPA, on the other breach ed. dly breached. contra ct it to it liable is such, that OneKey was still so obligated and, as is liable to it ted obliga that OneKey was still ct. contract. breach of contra for breach an of an interp retatio n of " 'The and interpretation constr uction and The construction "' ct is an issue unambiguous contract issue of of written contra unambi guous written is as is law provin ce of the court, as within the province law within is writin g the inquiry whether the writing is whethe r inquiry of the the If e. instanc ambiguous in the first instance. If the ambigu ous meanin g language ambigu ity, its meaning languag e is free from ambiguity, the on law of matter a may be determined a matter law on the as determ ined may to resort t withou basis alone without resort to writing alone of the writing basis of v. Group o (Palomb extrinsic evidence'" (Palombo Group v. ce'" eviden sic extrin 620, A.D.3d 620, poughkeepsie City 8ch. Sch. Dist., 125 A.D.3d Poughk eepsie City J. of Offs. Law g 621, 3 N.Y.S.3d 390, guoting Law Offs. of J. guotin 3d N.Y.S. 3 621, 603, A.D.3d 124 Stewart Moore, P.C. v. A.D.3d 603, Trent, v. Stewar t is contra ct is a contract "Where a 603, 148).. "Where S. 3d 148) Y. S. N. Y. 603, 2 N. be may ce eviden ambiguous, extrinsic evidence may be sic extrin ambigu ous, partie s' intent~ considered determine intent~ ine the parties' ered to determ consid A.D.3d (Fattorusso Mech. 1 Inc., 131 A.D.3d RJR Mech., v. RJR (Fattor usso v. 1098, 1100, 16 N.Y.S.3d Schron v. N.Y.S. 3d 844; see Schron 1098, 963 N.Y.3d 430, 436, 963 Troutman Sander s LLP, 20 N.Y.3d Troutm an Sanders "'When N.E.2d N.Y.S.2d 613, 986 N.E.2d 430). "'When 613, d N.Y.S.2 uction interpreting contract, the constr construction ct, reting aa contra interp of all of g meanin arrived at should give fair meaning to all should give arrived reach to s, partie the employed reach ed by the parties, languag e employ the language partie s 1 interpretation retatio n of the parties practi cal interp aa practical reason able their expressions that their reasonable so expres sions o 762 (Palomb " d' expectations will be realized' " (Palombo 762 realize will ations expect 125 Dist., Sch. City Group v. Poughkeepsie City Dist., 125 eepsie Poughk v. Group quotin A.D.3d at 621, 3 N.Y.S.3d guotingg N.Y.S. 3d 390, 621, A.D.3d at 880 675, 672, A.D.3d Fernandez v. Price, A.D.3d 672, 675, 880 63 Fernand ez v. N.Y.S.2d N.Y.S.2 d 169). I (Yarom v. S.P.A., 153 AD3d 760, 761-62 761-62 [2d [2d Dept Dept 2017], 2017], lv lv AD3d 760, Polifor m S.P.A. v. Poliform (Yarom . 2017]) 21, App [Ct 92900 to appeal denied, 2017 NY Slip Op 92900 [Ct App Nov. 21, 2017]). Slip NY , to appeal denied 2 [* 2] 2 of 4 FILED: WESTCHESTER COUNTY CLERK 12/13/2017 11:43 AM NYSCEF DOC. NO. 203 INDEX NO. 52144/2015 RECEIVED NYSCEF: 12/13/2017 motio ns, ctive motions, es' respe Upon consideration parties' respective derat ion of the parti consi Upon rlyin g unde the of the underlying exam inatio n of submissions and posit positions upon examination and upon ions and ission s and subm the Court 2013, the written contract, as amend amended on March Court finds finds March 19, 2013, ed on act, as writt en contr nsic extri of tion idera cons that there are ambiguities requiring the consideration of extrinsic ring requi s that there are ambi guitie evidence determine intentt and, as as to to same, same, there there parti es' inten mine the parties' to deter nce to evide are mate material questions ions of fact. rial quest are wing the follo that the Not of limitation, Court finds finds that following limit ation , the Court way of by way Not by ment, amend act contr contract clause, found in the March 19, 2013 contract amendment, March 19, e, found act claus contr parti es: ation s of oblig creates a material ambiguity to the obligations of the the parties: as uity ambig creat es a mate rial Works truct ure Works [OneKey] shall comp complete Substructure lete Subs ey] shall (OneK of on tructi Cons being Site Excavation and the Construction of and n being Site Exca vatio an for . . . ture struc the three level parking structure. . for an the three level parki ng ") ("GMP Price nteed Price ("GMP") as all-Sub-Structure Guaranteed as ub-S truct ure Guara all-S truct ion of set out out below. Duringg cons construction of the the Durin below . set be shall (OneK ey] Sub-Structure Proj ect, [OneKey] shall be ct, tructu re Proje Sub-S and Desig n and ize the Design available [BPA] to final finalize able to [BPA] avail and rical elect l, Pricing [for mechanical, electrical and anica mech for [ Prici ng (as A bit Exhi in out plumbing work] as laid Exhibit A (as laid plumb ing work] the per as able avail amended) as well as being available as per the being amend ed) as well being that tion being Contract terms with with the inten intention that ract terms Cont prior ence prior comm the Supe Superstructure work shall shall commence rstru cture work the Proje ct. tructu re Project. to Sub-Structure comp letion of the Sub-S to completion to etion The Owner will also have discretion to have the discr will also The Owner respe ct to (with nominate sub-contractors [with respect to ontra ctors nomin ate sub-c ]. work ing plumb and mechanical, electrical and plumbing work] . rical elect l, mech anica lable " as be "avai to be ation to Among other other things, obligation "available" as OneK ey's oblig thing s, OneKey's Among from y OneKe e excus law, of r therein specified does not, as aa matter excuse OneKey from matte fied does there in speci the under the rm under perfo wise other any still extant obligation to otherwise perform ation oblig t extan any still nal origi the of under the terms contract, including any oblig obligation terms of the original ation under ding any act, inclu contr ing work and rical elect l, contract with respect mechanical, electrical and plumb plumbing work anica mech to ct respe contr act with by t by mean is what is uous ambig and/or subcontractors. Just ambiguous is what is meant as Just tors. and/o r subco ntrac rical mech anica l, elect allowing "the discr discretion electrical nomin ate" mechanical, etion to nominate" BPA "the allow ing BPA the by the ed by cre.at also is guity and plumbing subcontractors. An ambiguity also created ambi An and plumb ing subco ntrac tors. ing plumb and rical elect l, anica retention of line items for mechanical, electrical and plumbing mech reten tion of line items ding provi while , ment) subcontractors in Exhib Exhibit "A" (to (to the amend amendment), while providing it "A" ntrac tors in subco " for cost estim estimates of "-" ates for same of"for mate rial and the material unde rlie the s, underlie These ambiguities, among other others, and guitie s, among These ambi issue rial mate the Among es. divergent positions taken by the parties. Among the material issue parti by diver gent posit ions taken rical and anica l, elect raised is whether the removal mechanical, electrical and remov al of mech wheth er the raise d is e excus to ded inten was ment plumbing pricing in the March amendment intended to excuse amend plumb ing prici ng in the March s, argue y OneKe as same, to ct One Keyy from its oblig obligations with respect as OneKey argues, respe ation s with from its OneKe mean t as y meant simpl was ng prici or whether the removal such pricing was simply as aa such of al remov the er or wheth led detai more of n prepa ratio temporary deletion of more detailed pendi ng the preparation ion pending tempo rary delet s. engineering BPA argue argues. plans , as BPA eerin g plans, engin 3 [* 3] 3 of 4 INDEX NO. 52144/2015 FILED: WESTCHESTER COUNTY CLERK 12/13/2017 11:43 AM NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 12/13/2017 \ \ paper s the papers upon the resolv ed upon Since none of these can be resolved issues can these issues none of Since hereby before before the Court, it is hereby are judgm ent are ry judgment ORDERED, summary respec tive-m otions for summa the respective-motions that the ORDERED, that denied;; and, it is furthe furtherr denied Tuesd ay, on Tuesday, appea r on direct ed to appear ORDERED, partie s are directed the parties that the ORDERED, that Part, rence Confe ment Settle January 23, 2018 at 9:15 a.m. in the Settlement Conference Part, Janua ry 23, 2018 at Martin Dr. 111 , Court e Courtroom 1600,. Westc Westchester County Suprem Supreme Court, 111 Dr. Martin hester County oom 1600,_ Courtr to prepa red to York, prepared New York,. , New Plains Luther King, Jr. Bbulevard,White Plains, ·white vard, Boule Jr. King, r Luthe rence. ment confe conduct settlement conference. a settle condu ct a of Order of and Order Decis ion, and The forego foregoing constitutes Opinio n, Decision, itutes the Opinion, ing const The the Court. New York Dated:: White White Plains Plains,, New York Dated 2017 )3-li..,.., 2017 December Decem ber )3~" craig B.Johnson, B. Johnso n, Esq. Craig tiff Attorney Plaintiff Attorn ey for Plain Avenu e 85 W. Hawth orne Avenue W. Hawthorne 80 NY.115 Valley Stream,, NY' 11580 Valley Stream LLP blatt, LLP. Welby,, Brady Brady & Greenblatt, & Green Welby By~ Alan ..Singer, Singe r, Esq. D .. Alan D LLC Assoc iates, LLC Place Associates, Attorneys fot Def. Byron Byron Place Attorn eys for th th Martinee Avenue, Fl. Avenu e, 15 .Fl. 11 Martin White 10606 Plains , NY 10606 White Plains, 4 [* 4] 4 of 4

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