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

1386
CA 12-00867
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


CHARTER SCHOOL FOR APPLIED TECHNOLOGIES,
DOMINIQUE WILSON, AS PARENT AND NATURAL
GUARDIAN OF MICHAEL EPPERSON, AN INFANT,
AND TONYA ROBINSON, AS PARENT AND NATURAL
GUARDIAN OF NOELLE CLARK, NAILAH ROBINSON,
AND LAYLA ROBINSON, INFANTS,
PLAINTIFFS-RESPONDENTS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

BOARD OF EDUCATION FOR CITY SCHOOL DISTRICT
OF CITY OF BUFFALO, DEFENDANT-APPELLANT-RESPONDENT.
(APPEAL NO. 1.)


HISCOCK & BARCLAY, LLP, BUFFALO (JAMES P. MILBRAND OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT.

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (LISA A.
COPPOLA OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS-APPELLANTS.


     Appeal and cross appeal from an amended order of the Supreme
Court, Erie County (John A. Michalek, J.), entered March 5, 2012. The
amended order, among other things, granted in part plaintiffs’ motion
for partial summary judgment.

     It is hereby ORDERED that said appeal and cross appeal are
unanimously dismissed without costs.

     Memorandum: Plaintiffs commenced this action for, inter alia,
breach of contract, arising from an agreement in which defendant
agreed to provide school bus transportation for students who resided
within the City of Buffalo but attended plaintiff Charter School for
Applied Technologies (hereafter, CSAT). In appeal No. 1, defendant
appeals from an amended order that, inter alia, granted those parts of
plaintiffs’ motion for partial summary judgment on liability on the
first two causes of action, alleging breach of contract, and directed
a trial on the issue of damages on those causes of action, and granted
that part of plaintiffs’ motion for partial summary judgment
dismissing the fourth affirmative defense, in which defendant
contended that the contract was void due to the term limits rule.
Plaintiffs cross-appeal from those parts of the amended order denying
in part their motion for summary judgment on the seventh cause of
action, alleging the violation of the Open Meetings Law (Public
Officers Law § 100 et seq.), and granting those parts of defendant’s
                                 -2-                          1386
                                                         CA 12-00867

cross motion for summary judgment dismissing the fifth and sixth
causes of action, which alleged violations of Education Law §§ 3622
and 3635. In appeal No. 2, defendant appeals from a judgment
subsequently entered in plaintiffs’ favor after a trial on damages.

     Initially, we dismiss the appeal and cross appeal in appeal No. 1
because the right to appeal from the intermediate order terminated
upon the entry of the judgment in appeal No. 2 (see Murphy v CSX
Transp., Inc. [appeal No. 1], 78 AD3d 1543, 1543; Smith v Catholic
Med. Ctr. of Brooklyn & Queens, 155 AD2d 435, 435). The issues raised
in appeal No. 1 concerning the amended order will be considered on the
appeal from the judgment in appeal No. 2 (see Matter of Aho, 39 NY2d
241, 248).

     Addressing first the parties’ contentions with respect to the
amended order, we reject defendant’s contention that the contract is
unenforceable because it violates the term limits rule. In general,
“[t]he term limits rule prohibits one municipal body from
contractually binding its successors in areas relating to governance
unless specifically authorized by statute or charter provision to do
so” (Matter of Karedes v Colella, 100 NY2d 45, 50). The applicable
statute, Education Law § 2554 (19), permits a school board to enter
into contracts for the transportation of children to and from school
for a period not to exceed five years. Here, the initial term of the
contract was for approximately 17 months, and it was to be renewed
automatically for five-year terms. Contrary to defendant’s
contention, the automatic renewal provision did not violate the term
limits rule (see generally Matter of Lewiston-Porter Cent. Sch. Dist.
v Sobol, 154 AD2d 777, 778-779, lv dismissed 75 NY2d 978). Here, the
contract affords successor Boards of Education the opportunity to
terminate the contract under certain circumstances, and thus they are
able “to exercise legislative and governmental powers in accordance
with their own discretion” (Karedes, 100 NY2d at 50; cf. Matter of
Boyle, 35 Ed Dept Rep, Decision No. 13,501, at *3).

     We agree with defendant, however, that Supreme Court erred in
granting plaintiffs’ motion to the extent that they sought partial
summary judgment on liability on the first two causes of action. We
therefore modify the amended order accordingly. The first cause of
action alleged that defendant breached paragraph four of the contract,
but the contract further provides that CSAT’s remedy for breach of
that paragraph is to terminate the contract. “Construction of an
unambiguous contract is a matter of law” (Beal Sav. Bank v Sommer, 8
NY3d 318, 324), and “[t]he best evidence of what parties to a written
agreement intend is what they say in their writing . . . Thus, a
written agreement that is complete, clear and unambiguous on its face
must be enforced according to the plain meaning of its terms”
(Greenfield v Philles Records, 98 NY2d 562, 569 [internal quotation
marks omitted]; see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162-
163). Consequently, we conclude that the court erred in granting that
part of plaintiffs’ motion seeking partial summary judgment on the
first cause of action, and we further conclude that defendant is
entitled to summary judgment in its favor on that cause of action.
Although it does not appear that defendant specifically addressed this
                                 -3-                          1386
                                                         CA 12-00867

issue in its cross motion, we may search the record notwithstanding
that failure because that cause of action was the subject of
plaintiffs’ motion, which placed the issue before the motion court
(see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430; Simet v Coleman
Co., Inc., 42 AD3d 925, 927). Upon exercising our power to search the
record (see CPLR 3212 [b]; see generally Merritt Hill Vineyards v
Windy Hgts. Vineyard, 61 NY2d 106, 111-112), we grant summary judgment
in favor of defendant dismissing the first cause of action, and we
further modify the amended order accordingly.

     The second cause of action alleged, inter alia, that defendant
breached the contract by terminating it in the absence of any of the
factors that would permit termination. Plaintiff concedes, however,
that defendant had the right to terminate the contract if it
“determine[d] at any time that the provision of transportation as
provided in this Agreement results in a potentially substantial burden
(in the discretion of [defendant]) because of any other school or
schools seeking transportation or payment for transportation in
connection with a location outside of the corporate borders of the
Buffalo City School District [hereafter, District].” Plaintiffs, as
the parties seeking summary judgment, had the burden of submitting
evidence negating the existence of any triable issue of fact (see
Alvarez v Prospect Hosp., 68 NY2d 320, 324). We agree with defendant
that plaintiffs failed to establish as a matter of law that there was
not a “potentially substantial burden” arising from requests by other
schools for transportation. Thus, we conclude that plaintiffs failed
to meet their initial burden on the motion with respect to the second
cause of action (see generally Zuckerman v City of New York, 49 NY2d
557, 562), and we therefore further modify the amended order
accordingly. Contrary to defendant’s contention, however, it failed
to meet its similar burden on the cross motion (see generally id.),
and thus the court properly denied that part of the cross motion
seeking summary judgment dismissing the second cause of action.

     Contrary to plaintiffs’ contention on their cross appeal, the
court properly granted those parts of defendant’s cross motion for
summary judgment dismissing the fifth and sixth causes of action. In
those causes of action, plaintiffs alleged that defendant’s 2009
amendment to the transportation policy violated Education Law §§ 3622
and 3635 by providing transportation to students attending school
within the District but refusing to transport CSAT students in like
circumstances. It is undisputed, however, that CSAT is located
outside the District, and “students attending school outside the
[D]istrict are not ‘in like circumstances’ with students attending
school within the [D]istrict” (Matter of Hatch v Board of Educ.,
Ithaca City School Dist., 81 AD2d 717, 717; see O’Donnell v Antin, 81
Misc 2d 849, 852, affd 36 NY2d 941, appeal dismissed 423 US 919;
Matter of Brown v Allen, 23 AD2d 591, 591). Thus, Education Law §§
3621 (2) (a) and 3635 (1) (c) do not provide a basis for a cause of
action against defendant.

     Contrary to plaintiffs’ further contention, the court also
properly granted that part of defendant’s cross motion for summary
judgment dismissing the seventh cause of action, which alleged the
                                 -4-                          1386
                                                         CA 12-00867

violation of the Open Meetings Law. Defendant met its initial burden
on the cross motion by establishing that its June 24, 2009 executive
session was held for the purpose of receiving advice from counsel
regarding pending litigation, which is permissible under the Open
Meetings Law (see Public Officers Law § 105 [1] [d]; Matter of Gernatt
Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 686). Plaintiffs
failed to raise a triable issue of fact in opposition (see generally
Zuckerman, 49 NY2d at 562).

     With respect to the judgment in appeal No. 2, we reject
defendant’s contention that the court erred in denying its motion in
limine prior to the trial on damages. Defendant’s motion to preclude
plaintiffs from introducing any evidence with respect to damages was
“ ‘the functional equivalent of a motion for partial summary
judgment’ ” (Scalp & Blade v Advest, Inc., 309 AD2d 219, 224-225; see
Rondout Elec. v Dover Union Free School Dist., 304 AD2d 808, 811),
which was untimely (see Ofman v Ginsberg, 89 AD3d 908, 909).
Defendant failed to provide “a satisfactory explanation for the
untimeliness” (Brill v City of New York, 2 NY3d 648, 652), and thus
the court properly denied the motion.

     In any event, we note in particular that the court properly
denied defendant’s motion in limine on the merits insofar as it sought
to preclude plaintiffs from introducing evidence of damages incurred
after January 11, 2011, the date on which both CSAT’s charter and the
contract would have renewed but for defendant’s termination of the
contract. The court properly determined that plaintiffs were entitled
to present evidence of damages that were the “ ‘natural and probable
consequence[s] of [defendant’s] breach’ ” (Brody Truck Rental v
Country Wide Ins. Co., 277 AD2d 125, 125, lv dismissed 96 NY2d 854;
see Kenford Co. v County of Erie, 73 NY2d 312, 319).

     Additionally, the court did not abuse its discretion in denying
defendant’s motion to preclude CSAT from presenting certain documents
and the testimony of an expert witness due to untimely disclosure.
Initially, we note that defendant never made an expert witness demand
under CPLR 3101 (d) (1) (i). In any event, a court’s broad discretion
to control discovery should be disturbed only upon a showing of clear
abuse of discretion (see Roswell Park Cancer Inst. Corp. v Sodexo Am.,
LLC, 68 AD3d 1720, 1721), and plaintiffs have made no such showing
here.

     Based upon our modification of the amended order, we remit the
matter to Supreme Court for a trial on the issue of liability. In the
event that defendant is found liable at that trial, the damages award
shall be reinstated (see e.g. Brownrigg v New York City Hous. Auth.,
70 AD3d 619, 622).




Entered:   April 26, 2013                      Frances E. Cafarell
                                               Clerk of the Court
