SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1371 

CA 11-01067 

PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ. 

 

UTILITY SERVICES CONTRACTING, INC., 

PLAINTIFF-RESPONDENT-APPELLANT, 

V MEMORANDUM AND ORDER

MONROE COUNTY WATER AUTHORITY, 

DEFENDANT-APPELLANT-RESPONDENT. 

(APPEAL NO. 1.) 

 

HARTER SECREST & EMERY LLP, ROCHESTER (F. PAUL GREENE OF COUNSEL), FOR

DEFENDANT-APPELLANT-RESPONDENT. 

MURA & STORM, PLLC, BUFFALO (ERIC T. BORON OF COUNSEL), FOR

PLAINTIFF-RESPONDENT-APPELLANT. 

 

Appeal and cross appeal from an order of the Supreme Court,

Monroe County (Kenneth R. Fisher, J.), entered August 4, 2010 in a

breach of contract action. The order denied in part the motion of

defendant for summary judgment and denied plaintiff’s cross motion for

summary judgment. 

It is hereby ORDERED that said appeal from the order insofar as

it denied that part of defendant’s motion for summary judgment

dismissing the first cause of action to the extent that it sought

consequential damages is unanimously dismissed and the order is

modified on the law by granting those parts of defendant’s motion for

summary judgment dismissing the first cause of action except to the

extent that it sought consequential damages and for summary judgment

on the counterclaim in the amount of $108,000 plus prejudgment

interest and as modified the order is affirmed without costs. 

Memorandum: Plaintiff commenced this action seeking damages

resulting from defendant’s alleged breach of a contract for a water

main installation project. By the order in appeal No. 1, Supreme

Court granted those parts of defendant’s motion for summary judgment

dismissing the second through fourth causes of action, denied those

parts of defendant’s motion for summary judgment dismissing the first

cause of action, for breach of the implied covenant of good faith and

fair dealing, and for summary judgment on the counterclaim, for

liquidated damages and attorneys’ fees, and denied plaintiff’s cross

motion for summary judgment on the amended complaint. We note that,

although the court did not address that part of the motion for summary

judgment on the issue of consequential damages, the failure to rule on

that part of the motion is deemed a denial thereof (see Brown v U.S.
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CA 11-01067 

Vanadium Corp., 198 AD2d 863, 864). In appeal No. 2, defendant moved

for leave to reargue only that part of its motion for summary judgment

determining that plaintiff was contractually precluded from seeking

consequential damages. The court granted the motion for leave to

reargue and, upon reargument, the court noted that only that part of

its prior order concerning the first cause of action was at issue, and

it concluded that defendant was not entitled to summary judgment on

the issue of consequential damages. We note at the outset that

defendant’s appeal from the order in appeal No. 1 must be dismissed

with respect to the issue of consequential damages inasmuch as it was

superseded by the order in appeal No. 2 (see Loafin’ Tree Rest. v

Pardi [appeal No. 1], 162 AD2d 985).

We agree with defendant in each appeal that the first cause of

action, for breach of the implied covenant of good faith and fair

dealing, must be dismissed. We therefore modify the order in each

appeal accordingly. We conclude that the first and second causes of

action are duplicative inasmuch as they both allege that defendant

breached the contract in question by interfering with subcontractors

and refusing to grant appropriate extensions, thus preventing

plaintiff from completing the contract in a timely manner (see New

York Univ. v Continental Ins. Co., 87 NY2d 308, 319-320; Hassett v New

York Cent. Mut. Fire Ins. Co., 302 AD2d 886; see generally Bass v

Sevits, 78 AD2d 926, 927). We note that the allegations underlying

the first cause of action occurred prior to a written amendment to the

contract whereby defendant granted plaintiff an extension. With

respect to defendant’s interference and failure to grant an additional

extension following that amendment, as alleged in the second cause of

action, defendant met its initial burden on the motion and plaintiff

failed to submit evidence sufficient to raise a triable issue of fact

whether an additional extension was requested in writing as required

by the contract (see generally Zuckerman v City of New York, 49 NY2d

557, 562). Further, the parties’ prior conduct in requesting and

granting an extension to the contractual time limit in writing belie

the contention of plaintiff that the contract’s requirements with

respect thereto were waived (see Phoenix Corp. v U.W. Marx, Inc., 64

AD3d 967, 969-970; Charles T. Driscoll Masonry Restoration Co., Inc. v

County of Ulster, 40 AD3d 1289, 1291-1292). In light of our

conclusion that defendant is entitled to summary judgment dismissing

the amended complaint in its entirety, the issue whether plaintiff is

entitled to consequential damages is moot.

Contrary to plaintiff’s contention on its cross appeal in appeal

No. 1, the court properly granted those parts of defendant’s motion

for summary judgment dismissing the third cause of action, for

promissory estoppel, and the fourth cause of action, for unjust

enrichment. We further conclude that plaintiff failed to establish

that facts essential to justify opposition to the motion were in the

exclusive possession of defendant (see Santangelo v Fluor Constructors

Intl., 266 AD2d 893). 

We also agree with defendant in appeal No. 1 that the court erred

in denying that part of its motion for summary judgment on the
-3- 1371 

CA 11-01067 

counterclaim. There is no triable issue of fact with respect to

defendant’s entitlement to liquidated damages calculated from the

original contractual completion date of August 1, 2002, inasmuch as

the contractual amendment expressly reserved defendant’s right to

those damages. Further, although defendant entered into a release

agreement pursuant to which plaintiff’s surety would assess only

$75,000 in liquidated damages against the performance bond issued by

it, defendant expressly reserved its right to seek the remainder of

liquidated damages from plaintiff. We therefore further modify the

order in appeal No. 1 by granting that part of defendant’s motion for

summary judgment on the counterclaim in the amount of $108,000 plus

prejudgment interest, constituting the remainder of liquidated damages

owed following the surety’s payment of $75,000 (see generally CPLR

5001 [a]). The remaining contentions of defendant in appeal No. 1 are

moot.

Finally, we note that plaintiff abandoned any challenge to the

order in appeal No. 2 inasmuch as it failed to raise any contentions

with respect to the only part of the order by which plaintiff is

aggrieved (see CPLR 5511), i.e., that part denying its request for

costs and attorneys’ fees associated with the motion (see Ciesinski v

Town of Aurora, 202 AD2d 984). 

Entered: December 30, 2011 Frances E. Cafarell

Clerk of the Court