        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1274
CA 10-02514
PRESENT: SCUDDER, P.J., SMITH, GREEN, GORSKI, AND MARTOCHE, JJ.


AJAY GLASS & MIRROR CO., INC.,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

AASHA G.C., INC., BARRY HALBRITTER,
DEFENDANTS-APPELLANTS,
AND HUNT CONSTRUCTION GROUP, INC.,
DEFENDANT-RESPONDENT.


MENTER, RUDIN & TRIVELPIECE, P.C., SYRACUSE (ROBERT G. BENNETT OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

GATES & ADAMS, P.C., ROCHESTER (RICHARD T. BELL, JR., OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.

PILLSBURY WINTHROP SHAW PITTMAN LLP, WASHINGTON, D.C. (MICHAEL S.
MCNAMARA, OF THE WASHINGTON, D.C. BAR, ADMITTED PRO HAC VICE, OF
COUNSEL), AND HANCOCK ESTABROOK, LLP, SYRACUSE, FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Kenneth
R. Fisher, J.), dated November 17, 2010. The order, among other
things, granted the motion of plaintiff and defendant Hunt
Construction Group, Inc. to vacate an order entered January 8, 2010
and a partial judgment entered January 21, 2010.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of the motion of
plaintiff and defendant Hunt Construction Group, Inc. seeking to
vacate the “statement for partial judgment” insofar as it awarded
defendant AASHA G.C., Inc. damages in the amount of $51,508.69, plus
applicable interest, costs and disbursements, for the set aside amount
to which that defendant is entitled, and as modified the order is
affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking to recover
funds allegedly owed to it for work performed on the Turning Stone
Casino & Resort (hereafter, project), owned by the Oneida Indian
Nation (OIN). In order to comply with the OIN’s requirement that a
certain amount of work on the project be subcontracted to firms owned
by its members, defendant Hunt Construction Group, Inc. (Hunt)
subcontracted work to defendant AASHA G.C., Inc. (AASHA), which in
turn sub-subcontracted that same work to plaintiff. AASHA asserted
                                 -2-                          1274
                                                         CA 10-02514

two cross claims against Hunt. The first cross claim sought to
recover the set aside amounts to which AASHA was entitled based upon
plaintiff’s payment requisition Nos. 16 and 17, and the second cross
claim sought to recover the amount that AASHA was obligated to pay
plaintiff for those same requisitions. In a prior order, Supreme
Court denied Hunt’s motion for summary judgment dismissing the
complaint and cross claims against it and, upon the request of
plaintiff, the court searched the record and awarded
“AASHA/[plaintiff]” partial summary judgment. A “statement for
partial judgment” (hereafter, partial judgment) subsequently entered
in favor of AASHA included damages in the amount of $643,858.65 owed
to plaintiff under the sub-subcontract for work associated with
requisition Nos. 16 and 17, as well as $51,508.69, representing the 8%
set aside to which AASHA was entitled on those damages.

     Following entry of the partial judgment, Hunt and plaintiff
entered into a stipulated settlement agreement resolving plaintiff’s
claims against Hunt for nonpayment. AASHA and its president,
defendant Barry Halbritter (collectively, AASHA defendants), appeal
from an order granting the joint motion of plaintiff and Hunt seeking,
inter alia, to vacate the prior order and partial judgment in favor of
AASHA based upon that stipulated settlement, as well as to dismiss
AASHA’s second cross claim against Hunt. We agree with the AASHA
defendants that the court abused its discretion in vacating the
partial judgment in its entirety (see generally CPLR 5015 [a]; Matter
of County of Ontario [Middlebrook], 59 AD3d 1065). Although AASHA
previously assigned to plaintiff its rights under the subcontract with
Hunt with respect to amounts allegedly owed to plaintiff, that
agreement between AASHA and plaintiff explicitly states that
“[n]othing in [the] agreement shall prevent AASHA from recovering from
Hunt any and all payments owed to AASHA by Hunt under the [OIN] set
aside program for work performed pursuant to [plaintiff’s s]ub-
subcontract . . . .” AASHA thereby expressly retained its claims
against Hunt for the set aside amounts associated with plaintiff’s
work. Thus, we conclude that the court abused its discretion by
vacating the partial judgment in its entirety inasmuch as there is no
basis upon which to disturb the award of $51,508.69, plus applicable
interest, costs and disbursements, in favor of AASHA. We therefore
modify the order by denying that part of the motion of plaintiff and
Hunt seeking to vacate the partial judgment insofar as it awarded
those damages in favor of AASHA.

      We further agree with the AASHA defendants that, insofar as the
statement in the order that the only “remaining claim to be tried [is]
the first [c]ross[ c]laim” may be interpreted as a dismissal of the
AASHA defendants’ counterclaim, the court erred in doing so. The
counterclaim was not a “subject” of Hunt’s motion for summary judgment
or plaintiff’s request that the court search the record with respect
to the payment requisitions (Dunham v Hilco Constr. Co., 89 NY2d 425,
430).

     Finally, we reject the AASHA defendants’ contention that the
court abused its discretion in granting Hunt’s motion to consolidate
this action with an action commenced by the OIN in Onondaga County
                                 -3-                          1274
                                                         CA 10-02514

related to the project (see generally Dias v Berman, 188 AD2d 331;
Zimmerman v Mansell, 184 AD2d 1084).




Entered:   December 30, 2011                   Frances E. Cafarell
                                               Clerk of the Court
