11-4903-cv (L)

Am. Underground Engineering, Inc. v. City of Syracuse

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO 

A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS 

GOVERNED BY FEDERAL RULE OF APPELLAT E PROCEDURE 32.1 AND THIS COURT'S 

LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED 

WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPE NDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY 

CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT 

REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals 

for the Second Circuit, held at the Thurgood Marshall United 

States Courthouse, 40 Foley Square, in the City of New York, on 

the 4

th day of June, two thousand thirteen.

PRESENT: DENNY CHIN,

RAYMOND J. LOHIER, JR.,

Circuit Judges,

LAURA TAYLOR SWAIN,

District Judge.

*

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AMERICAN UNDERGROUND ENGINEERING, INC.,

Plaintiff-Appellee,

-v.- 11-4903-cv (L)

12-3297-cv (CON)

CITY OF SYRACUSE,

Defendant-Appellant.

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* The Honorable Laura Taylor Swain, of the United States 

District Court for the Southern District of New York, sitting by 

designation.
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FOR PLAINTIFF-APPELLEE: KEVIN M. COX (Joseph A. Camardo, 

Jr., on the brief), Camardo Law 

Firm, PC, Auburn, New York.

FOR DEFENDANT-APPELLANT: JOHN G. POWERS (James P. Youngs, 

on the brief), Hancock Estabrook, 

LLP, Syracuse, New York, for Mary 

Anne Doherty, City of Syracuse 

Corporation Counsel, Syracuse, New 

York.

Appeal from the United States District Court for the 

Northern District of New York (Scullin, J.).

UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED.

On July 1, 2010, a jury found that defendant-appellant 

City of Syracuse (the "City") had substantially breached a 

construction contract entered into with plaintiff-appellee 

American Underground Engineering, Inc. ("AUE") and awarded AUE 

$7,306,021.64 in damages. Post-trial, the City requested that 

the district court treat the jury's verdict as advisory,

challenging the damages awarded to AUE, and seeking judgment as 

a matter of law. The City now appeals from the district court's

August 6, 2012 amended judgment correcting its October 13, 2011 

judgment entered pursuant to its October 11, 2011 MemorandumDecision and Order, which granted remittitur to $5,312,678.00 

but otherwise denied the City's motion. We assume the parties' 
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familiarity with the underlying facts, the procedural history, 

and the issues on appeal.

1. Election of Remedies

The City argues that the district court erred because 

it permitted AUE to move forward under a rescission theory on 

the second day of trial, after AUE had, the City contends, 

elected its damages remedy by moving for summary judgment on 

liability on a breach of contract theory. We review questions 

of law de novo, see L-3 Commc'ns Corp. v. OSI Sys., Inc., 607 

F.3d 24, 27-28 (2d Cir. 2010), and conclude that the City's 

arguments lack merit. 

First, although summary judgment is generally treated 

as the procedural equivalent of a trial, see S.J. Capelin 

Assocs., Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341 (1974), 

AUE's motion for summary judgment addressed liability alone. 

Hence, to the extent the motion was the equivalent of a trial

for these purposes, it did not address damages or rescission at 

all. Cf. Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 263

(2d Cir. 1999) (holding that, where plaintiff did not seek to 

rescind a contract and only sought quantum meruit recovery after

a jury had determined an enforceable contract existed, plaintiff

was limited to recovery under the contract). AUE cannot be 
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deemed to have elected its damages remedy when damages were not 

at issue on the motion. 

Second, the motion for partial summary judgment on the 

issue of liability for breach of contract was not inconsistent 

with rescission and the remedy of quantum meruit. Whether the 

City had breached the contract, and whether it did so in a 

manner that "substantially defeat[ed the contract's] purpose,"

Callanan v. Keeseville, Ausable Chasm & Lake Champlain R.R. Co., 

199 N.Y. 268, 284 (1910), cited in R.R. Chester, LLC v. 

Arlington Bldg. Corp., 803 N.Y.S.2d 100, 101 (2d Dep't 2005), 

were at the heart of this dispute. Furthermore, if -- as the 

jury found -- the City's breach defeated the purpose of the 

contract, then AUE could "timely rescind and seek recovery on 

the theory of quasi contract." Clark-Fitzpatrick, Inc. v. Long 

Island R.R. Co., 70 N.Y.2d 382, 389 (1987). This would be the 

case notwithstanding the general rule that the "existence of a 

valid and enforceable written contract governing a particular 

subject matter" precludes a quantum meruit recovery. Id. at 

388. Hence, as the district court concluded, AUE made no 

election as to its damages remedy by moving for summary judgment 

as to liability alone. 
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Third, we note that, during a colloquy with the 

district court and AUE regarding the propriety of the rescission 

argument, the City's attorney argued:

I guess the first thing [AUE] need[s] to do then is 

put on the record that they're withdrawing their 

breach of contract causes of action and claims and 

they're simply asking for an action for recision [sic] 

quantum meruit would be I guess would be [sic] the 

first part, your Honor.

After the City prompted AUE to elect its remedy, AUE did so --

choosing to proceed solely on a theory of rescission. Thus, to 

the extent the City now contends that the district court erred 

by allowing AUE to elect its remedy during the second day of 

trial, this argument has been waived. See, e.g., In re Nortel 

Networks Corp. Sec. Litig., 539 F.3d 129, 132-33 (2d Cir. 2008) 

(per curiam).

Finally, while a litigant must, of course, elect among 

inconsistent remedies presented, under New York law, that

precise moment is left to the trial court's discretion "in the 

light of the record as it develops." Lukaris v. Harrison 

Vending Sys., Inc., 283 N.Y.S.2d 674, 676 (3d Dep't 1967); see

also, e.g., Wilmoth v. Sandor, 686 N.Y.S.2d 388, 390-91 (1st 

Dep't 1999); Baratta v. Kozlowski, 464 N.Y.S.2d 803, 809-10 (2d 

Dep't 1983); Patrick M. Connors, Practice Commentaries

§ C3002:14, in N.Y. C.P.L.R. § 3002 (McKinney's 2013). Hence, 
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no legal error undermined the district court's exercise of its 

discretion as to when AUE should elect its theory of damages.

2. Waiver of Advisory Jury

The City further claims that the district court erred 

by allowing the jury to decide the rescission action, a purely 

equitable claim. The district court "may, with the parties' 

consent, try any issue by a jury whose verdict has the same 

effect as if a jury trial had been a matter of right." Fed. R. 

Civ. P. 39(c)(2). The record here indicates that the parties 

proceeded under the assumption that the case would be tried 

before a jury. Even after the only claim remaining was the 

equitable rescission action, the parties never discussed whether 

the jury should be dismissed or whether its findings should be 

treated as advisory. In fact, the phrase "advisory jury" was 

never uttered until the City filed its post-trial motion. 

Because "silence may be deemed 'consent' under Rule 39(c)," 

Broadnax v. City of New Haven, 415 F.3d 265, 272 (2d Cir. 2005), 

we conclude that the district court's adherence to the jury's 

verdict, as binding, was entirely proper.

3. Damages

Finally, the City also raises numerous arguments 

challenging the damages awarded to AUE. We review a district 

court's remittitur ruling for abuse of discretion, see, e.g., 
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Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 672 (2d Cir. 

2012), and find these arguments to be without merit. The City 

conceded during oral argument that it chose below to present its

damages theory solely by cross-examining AUE's witnesses. It

presented no witnesses, offered no evidence or alternative 

damages calculations, and (except in its post-trial motion) made 

none of the arguments advanced now on appeal. Hence, the 

district court was well within its discretion to find that the 

jury's award of damages -- with the exception of the portion it 

reduced -- was supported by AUE's evidence as presented at 

trial.

We have considered the City's remaining arguments and 

conclude they are without merit. For the foregoing reasons, we 

AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk