SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

922 

CA 11-00241 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ. 

 

THE ONEIDA INDIAN NATION, A SOVEREIGN NATION, 

PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

HUNT CONSTRUCTION GROUP, INC., 

DEFENDANT-RESPONDENT. 

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THE ONEIDA INDIAN NATION, A SOVEREIGN NATION, 

THIRD-PARTY PLAINTIFF,

V

 

BRENNAN BEER GORMAN/ARCHITECTS, LLP, 

THIRD-PARTY DEFENDANT. 

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BRENNAN BEER GORMAN/ARCHITECTS, LLP, 

FOURTH-PARTY PLAINTIFF-RESPONDENT,

V

 

BERTINO & ASSOCIATES, INC., 

FOURTH-PARTY DEFENDANT-APPELLANT, 

STEVEN FELLER, P.E., STEVEN FELLER, P.E. INC., 

STEVEN FELLER, P.E., PL, S. DESIMONE 

CONSULTING ENGINEERS, PLLC, FOURTH-PARTY 

DEFENDANTS-RESPONDENTS, 

ET AL., FOURTH-PARTY DEFENDANTS. 

 

WILLIAMS & CONNOLLY LLP, WASHINGTON, D.C. (DENNIS M. BLACK, OF THE

WASHINGTON, D.C. AND MARYLAND BARS, ADMITTED PRO HAC VICE, OF

COUNSEL), AND MACKENZIE HUGHES LLP, SYRACUSE, FOR PLAINTIFF-APPELLANT.

SUGARMAN LAW FIRM, LLP, SYRACUSE (SAMUEL M. VULCANO OF COUNSEL), FOR

FOURTH-PARTY PLAINTIFF-RESPONDENT.

PILLSBURY WINTHROP SHAW PITTMAN LLP, WASHINGTON, D.C. (JEFFREY R.

GANS, OF THE WASHINGTON, D.C. AND VIRGINIA BARS, ADMITTED PRO HAC

VICE, OF COUNSEL), AND HANCOCK & ESTABROOK, LLP, SYRACUSE, FOR

DEFENDANT-RESPONDENT. 

 

Appeals from an order of the Supreme Court, Onondaga County

(Deborah H. Karalunas, J.), entered January 21, 2011. The order,

among other things, denied the motion of plaintiff for partial summary
-2- 922 

CA 11-00241 

judgment and denied the motion of fourth-party defendant Bertino &

Associates, Inc. for summary judgment. 

It is hereby ORDERED that the order so appealed from is 

unanimously modified on the law by granting the motion of plaintiffthird-party plaintiff and dismissing defendant’s first and second

counterclaims to the extent that they seek amounts in excess of the

contractual guaranteed maximum price, as modified by Change Orders or

Construction Change Directives, and as modified the order is affirmed

without costs. 

Memorandum: Plaintiff-third-party plaintiff (plaintiff), the

owner of Turning Stone Casino & Resort, commenced this action seeking

damages resulting from the alleged breach by defendant, Hunt

Construction Group, Inc. (Hunt), of its construction contract

(contract) with plaintiff. On a prior appeal, we concluded that

Supreme Court erred in denying those parts of plaintiff’s motion to

dismiss the second counterclaim in part and the fourth and fifth

counterclaims, and we therefore modified the order accordingly (Oneida

Indian Nation v Hunt Constr. Group, Inc., 67 AD3d 1345). Plaintiff

appeals from that part of an order that denied its motion for partial

summary judgment dismissing Hunt’s remaining counterclaims to the

extent that they seek amounts in excess of the contractual guaranteed

maximum price (GMP) as modified by Change Orders or Construction

Change Directives executed pursuant to the terms of the contract. We

agree with plaintiff that the court erred in denying its motion, and

we therefore modify the order accordingly. 

Article 7 of the General Conditions of the contract unambiguously

provides that Hunt would not be reimbursed for any expense or paid a

fee for any work that exceeded the GMP unless that expense or work was

authorized either by a Change Order signed by plaintiff, third-party

defendant-fourth-party plaintiff, Brennan Beer Gorman/Architects, LLP

(BBG), the project architect, fourth-party defendant Bertino &

Associates, Inc. (Bertino), the construction manager, and Hunt or by a

Construction Change Directive signed by plaintiff, BBG and Bertino. 

The conduct of plaintiff and Hunt belies Hunt’s contention that

plaintiff waived that requirement set forth in Article 7 (cf. Austin v

Barber, 227 AD2d 826, 828). Indeed, Hunt continued to seek, and in

certain instances was granted, increases to the GMP pursuant to the

executed Change Orders and Construction Change Directives (see Charles

T. Driscoll Masonry Restoration Co., Inc. v County of Ulster, 40 AD3d

1289, 1292). Further, the limited authority granted to Bertino

pursuant to the contract to act on behalf of plaintiff cannot be

interpreted as authorization for Bertino to bind plaintiff to an

increased GMP, inasmuch as such an interpretation would render the

majority of Article 7 meaningless (see Diamond Castle Partners IV PRC,

L.P. v IAC/InterActiveCorp, 82 AD3d 421, 422).

Bertino also appeals from that part of the order that denied its

motion for summary judgment dismissing the fourth-party complaint

against it and the cross claims of the other fourth-party defendants,

Bertino’s subcontractors on the project. Inasmuch as Bertino’s

contract with plaintiff expressly requires Bertino to indemnify BBG
-3- 922 

CA 11-00241 

for any damages resulting from Bertino’s acts or omissions for which

BBG is found liable, the court properly denied that part of the motion

of Bertino with respect to BBG’s contractual indemnification claim

against it (see Williams v City of New York, 74 AD3d 479, 480). 

Finally, Bertino’s contention that it is entitled to summary judgment

dismissing the common-law indemnification and contribution claims

against it is raised for the first time on appeal, and thus that

contention is not properly before us (see Ciesinski v Town of Aurora,

202 AD2d 984, 985).

Entered: October 7, 2011 Patricia L. Morgan

Clerk of the Court