         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1230
CA 11-00323
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ.


TOWN OF ANGELICA, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JOEL S. SMITH, INDIVIDUALLY AND AS PRESIDENT OF
AGGRESSIVE COMPANY, INC., DOING BUSINESS AS
DIVERSIFIED CONTRACTING COMPANY AND
AGGRESSIVE COMPANY, INC., DOING BUSINESS AS
DIVERSIFIED CONTRACTING COMPANY,
DEFENDANTS-RESPONDENTS.


HODGSON RUSS LLP, BUFFALO (RYAN K. CUMMINGS OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

PIRRELLO, MISSAL, PERSONTE & FEDER, ROCHESTER (STEVEN E. FEDER OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Allegany County
(Gerald J. Whalen, J.), dated October 6, 2010. The order granted in
part the motion of defendants for partial summary judgment and
rejected the cross motion of plaintiff for partial summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying defendants’ motion in its
entirety and reinstating the first, second and third causes of action
and as modified the order is affirmed without costs.

     Memorandum: Plaintiff, Town of Angelica (Town), is the owner of
property known as the “Grange Building.” In August 2001, the Town
Board accepted a proposal from defendants to perform certain work
related to raising the building and constructing a concrete basement
underneath it and, in November 2001, the Town Supervisor accepted two
proposals from defendants for significant renovation work to the
interior and exterior of the building. In February 2002, however, the
Town Board resolved to terminate defendants from the project.
Defendants filed a lien against the property, and the Town thereafter
commenced this action seeking, inter alia, rescission of the three
purported agreements, vacatur of the lien and recovery of all money
previously paid to defendants. Defendants asserted two counterclaims
alleging that the Town had breached the agreements and that
defendants’ lien was valid.

     Before any significant discovery was conducted, the Town moved
for partial summary judgment, contending only that the agreements were
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                                                         CA 11-00323

void based on violations of General Municipal Law § 103. In
opposition to that motion, defendant Joel S. Smith, individually and
as President of Aggressive Company, Inc., doing business as
Diversified Contracting Company, submitted an affidavit averring that
the competitive bidding requirements of section 103 did not apply
because the work performed by defendants was specialized. When the
Town did not submit a reply, Supreme Court (Himelein, J.), deemed
Smith’s averments to be admitted. Although the Town filed a notice of
appeal from the order denying its motion, it did not perfect the
appeal, and the appeal was automatically dismissed pursuant to 22
NYCRR 1000.12 (b).

     Following additional discovery, defendants moved for partial
summary judgment seeking dismissal of the first through fourth and
eighth causes of action, as well as summary judgment on their
counterclaim for damages. The Town opposed the motion and cross-moved
for partial summary judgment on the first through fourth causes of
action, as well as summary judgment dismissing the counterclaims. We
conclude that Supreme Court (Whalen, J.) erred in granting defendants’
motion in part and dismissing the first, second and third causes of
action. We therefore modify the order by denying defendants’ motion
in its entirety and reinstating those causes of action.

     Contrary to defendants’ procedural contentions, we have the
discretion to address the merits of defendants’ motion and the cross
motion. First, although the dismissal of an appeal for want of
prosecution generally precludes review of any issues that were, or
could have been, raised on the prior appeal (see generally Bray v Cox,
38 NY2d 350, 353-354; Paul Revere Life Ins. Co. v Campagna, 233 AD2d
954), “an appellate court has the authority to entertain a second
appeal in the exercise of its discretion, even where a prior appeal on
the same issue has been dismissed for failure to prosecute” (Faricelli
v TSS Seedman’s, 94 NY2d 772, 774; see Aridas v Caserta, 41 NY2d 1059,
1061).

     Second, we may properly entertain the appeal with respect to the
Town’s cross motion for summary judgment despite the fact that the
Town previously moved for summary judgment. It is well established
that “successive summary judgment motions should be discouraged in the
absence of a showing of newly discovered evidence or other sufficient
cause” (Farrell v Okeic, 303 AD2d 957 [internal quotation marks
omitted]; see Town of Wilson v Town of Newfane, 192 AD2d 1095). That
rule, however, is discretionary. “[A] subsequent summary judgment
motion may be properly entertained when ‘it is substantively valid and
[when] the granting of the motion will further the ends of justice
while eliminating an unnecessary burden on the resources of the
courts’ ” (Rose v Horton Med. Ctr., 29 AD3d 977, 978). “In any event,
‘[a]s an appellate court, we are not precluded from addressing the
merits of the [cross] motion’ ” (Sexstone v Amato, 8 AD3d 1116, 1117,
lv denied 3 NY3d 609; see Giardina v Lippes, 77 AD3d 1290, 1291, lv
denied 16 NY3d 702).

     Third, we are not bound by the doctrine of law of the case.
Defendants contend that the determination in the prior order, i.e.,
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                                                         CA 11-00323

that the Town was deemed to have admitted that defendants’ work was
specialized, constitutes the law of the case and precludes the Town
from challenging the validity of the agreements. We reject that
contention. “The doctrine of . . . law of the case seeks to prevent
relitigation of issues of law that have already been determined at an
earlier stage of the proceeding . . . The doctrine applies only to
legal determinations that were necessarily resolved on the merits in a
prior decision . . . The doctrine may be ignored in extraordinary
circumstances such as a change in law or a showing of new evidence”
(Brownrigg v New York City Hous. Auth., 29 AD3d 721, 722).
Furthermore, “this Court is not bound by the doctrine of law of the
case because that doctrine ‘does not prohibit appellate review of a
subordinate court’s order’ ” (Matter of Jonathan M., 61 AD3d 1374,
1375; see Martin v City of Cohoes, 37 NY2d 162, 165, rearg denied 37
NY2d 817; Hampton Val. Farms, Inc. v Flower & Medalie, 40 AD3d 699).

      We conclude that the court (Himelein, J.) erred in deeming
Smith’s averments to be admitted. The failure of a movant to submit a
reply to opposition papers should not be deemed an admission because,
at that point, the movant no longer has any burden. On a summary
judgment motion, the movant has the initial burden of establishing its
entitlement to judgment as a matter of law (see generally Zuckerman v
City of New York, 49 NY2d 557, 562). Once that initial burden has
been met, the opposing party has the burden of establishing “facts
sufficient to require a trial of any issue of fact” (CPLR 3212 [b];
see generally Zuckerman, 49 NY2d at 562). In the event that the
opposing party fails to submit evidentiary facts to controvert the
facts set forth in the movant’s papers, the facts in those papers may
be deemed admitted and summary judgment granted inasmuch as no triable
issue of fact exists (see Kuehne & Nagel v Baiden, 36 NY2d 539, 544;
see e.g. Matter of Johnsen v ACP Distrib., Inc., 31 AD3d 172, 179;
SportsChannel Assoc. v Sterling Mets, L.P., 25 AD3d 314). In the
absence of a cross motion, there is no burden on the movant to submit
a reply, and thus the court should not deem facts raised in opposition
to a motion for summary judgment to be admitted. In any event, the
Town submitted newly discovered evidence permitting reconsideration of
the prior determination denying its motion (see Farrell, 303 AD2d
957).

     Having dispensed with the procedural contentions, we agree with
the Town that the court (Whalen, J.) erred in granting defendants’
motion in part and dismissing the first, second and third causes of
action.

     With respect to the first cause of action, the Town alleged that
the agreements violated Town Law § 64 (6). That statute requires that
“a formal resolution be passed by the Town Board and executed by the
Town Supervisor in the name of the Town before a Town can be bound by
any contract” (Verifacts Group v Town of Babylon, 267 AD2d 379; see
Parone v Rivers, 84 AD2d 686). The minutes from the Town Board
meetings establish that the Town Board voted unanimously to approve
the first agreement but that there was no formal resolution to that
effect. Defendants contend that the latter two agreements were merely
change orders that did not require additional authorization. We
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                                                         CA 11-00323

reject that contention. Those two agreements involved substantially
more extensive work and so varied from the original agreement that
they could be considered new undertakings (see Albert Elia Bldg. Co. v
New York State Urban Dev. Corp., 54 AD2d 337, 342-343; see generally
Del Balso Constr. Corp. v City of New York, 278 NY 154, 159-160). In
any event, we conclude that there are triable issues of fact whether
the Town Board ratified the latter two agreements (see Vermeule v City
of Corning, 186 App Div 206, 208-209, affd 230 NY 585; Town of N.
Hempstead v Winston & Strawn, LLP, 28 AD3d 746, 748, lv denied 7 NY3d
715; see also Imburgia v City of New Rochelle, 223 AD2d 44, 48, lv
denied 88 NY2d 815; cf. Seif v City of Long Beach, 286 NY 382, 387-
388, rearg denied 287 NY 836).

     With respect to the second cause of action, the Town alleged that
the agreements violated General Municipal Law § 103. We agree with
the Town that there are triable issues of fact whether that statute
applies to the agreements. It is undisputed that the Town did not
comply with the requirements of section 103, and “[m]unicipal
contracts awarded without resort to competitive bidding, other than
those exempted from such requirement pursuant to General Municipal Law
§ 103, are void and unenforceable” (JLJ Recycling Contrs. Corp. v Town
of Babylon, 302 AD2d 430, 431). In support of their motion,
defendants submitted evidence that their services were unique and thus
that the agreements were exempt from the requirements of section 103
(see Matter of Omni Recycling of Westbury, Inc. v Town of Oyster Bay,
11 NY3d 868, 869; Zack Assoc., Inc. v Setauket Fire Dist., 12 AD3d
439; Matter of Fawcett v City of Buffalo, 275 AD2d 954, 955, lv denied
96 NY2d 701). In opposition to defendants’ motion, however, the Town
raised a triable issue of fact whether defendants’ services were
unique by submitting evidence that other construction companies could
have performed the same services provided by defendants.

     With respect to the third cause of action, the Town sought a
declaration that the agreements were void ab initio as a matter of
law. Because there are triable issues of fact concerning the validity
of the agreements, we conclude that the court (Whalen, J.) also erred
in granting defendants’ motion concerning that cause of action.




Entered:   November 18, 2011                   Patricia L. Morgan
                                               Clerk of the Court
