                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 3, 2016                     521491
________________________________

MAINES PAPER & FOOD SERVICE,
   INC.,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

THE PIKE COMPANY, INC.,
                    Respondent.
________________________________


Calendar Date:   January 12, 2016

Before:   Peters, P.J., McCarthy, Rose and Lynch, JJ.

                             __________


      Hinman, Howard & Katell, LLP, Binghamton (Albert J. Millus
Jr. of counsel), for appellant.

      Phillips Lytle, LLP, Rochester (Mark J. Moretti of
counsel), for respondent.

                             __________


Lynch, J.

      Appeal from an order of the Supreme Court (Burns, J.),
entered November 3, 2014 in Broome County, which granted
defendant's motion for summary judgment dismissing the complaint.

      In October 2009, plaintiff and defendant entered into a
contract for the construction of a supermarket in the City of
Ithaca, Tompkins County. After the project was completed,
plaintiff discovered "considerable settling of the
[supermarket's] floor." Plaintiff commenced this action alleging
that defendant breached the contract and warranty contained
therein. The gravamen of plaintiff's claim is that defendant
failed to construct the foundation in accordance with the
requirements of a geotechnical engineering report (hereinafter
                              -2-                521491

report). In relevant part, the report recommended that a slab on
grade concrete floor could be constructed but, to limit potential
settlement issues, the foundation slab not be connected to the
pile caps. Defendant argues that it complied with its
contractual duty to construct the building in accordance with the
specifications. Following joinder of issue, defendant moved for
summary judgment dismissing the complaint. Supreme Court granted
the motion, plaintiff appeals and we affirm.

      A motion for summary judgment may be granted "if, upon all
the papers and proof submitted, the cause of action or defense
shall be established sufficiently to warrant the court as a
matter of law in directing judgment in favor of any party" (CPLR
3212 [b]; see Jacobsen v New York City Health & Hosps. Corp., 22
NY3d 824, 833 [2014]; Zuckerman v City of New York, 49 NY2d 557,
562 [1980]; Stubbs v Ellis Hosp., 68 AD3d 1617, 1618 [2009]).
Here, in support of its motion for summary judgment, defendant
submitted the contract and an affidavit by Joseph Snyder, its
former project manager. Snyder explained that, during the course
of the construction, defendant submitted a request for
clarification (hereinafter RFC) to the project architect stating,
"please refer to [specification] detail showing 4 pile cap rebar
detail. I do not see any rebar tying into . . . the slab at any
of these locations. Am I correct in assuming the slab is not
tied into these pile caps along Col. Line 6, through the center
of the building?"

      The RFC includes a section titled "Recommendations:" that
provides, "The slab is not directly tied to the pile caps along
Column Line 6. However, similar to exterior column locations #5
hair-pin dowels are required to be welded to the columns and
embedded in the concrete slab-on-grade approximately 2 inches
below the top of slab elevation. The bars should be constructed
to pass through the column isolation joint that should be placed
around the interior columns. A sketch of the condition is
attached for reference." According to Snyder, this
recommendation was drafted by the architect. Thereafter, a
change order approved by the owner and architect was issued that,
with reference to the "clarification" sought by the RFC, directed
the contractor to "add rebar reinforcement . . . [to] tie-in the
pile-cap, slab and column to each other. This will provide
                              -3-                521491

additional lateral support for the pile caps." Snyder avers that
defendant constructed the building in accordance with the
architect's plans and design specifications, as clarified by the
RFC and directed by the change order.

      In our view, defendant's submissions showing that it
followed the design specifications were sufficient to demonstrate
prima facie entitlement to judgment as a matter of law (see
Northeastern Plate Glass Corp. v Murray Walter, Inc., 147 AD2d
786, 787 [1989]). In response, plaintiff relied primarily on the
report, which, indisputably, recommended that the floor slab not
be connected to the pile cap. The project manual, however,
provided that the report's recommendations were not contractual
requirements unless specified, and plaintiff does not contend
that this recommendation was specified in the applicable contract
documents.1 Further, we are not persuaded that defendant was
contractually obligated to confirm explicitly in the RFC that the
specification conflicted with the report. Though the contract
obligated defendant to "carefully study and compare the various
Contract Documents relative to that portion of the Work" prior to
starting work, this was "for the purpose of facilitating
[defendant's] coordination and construction . . . and . . . not
. . . for the purpose of discovering errors, omissions, or
inconsistencies [in the design information contained] in the
Contract Documents." Further, although defendant was obligated
to report to the architect any "errors, inconsistencies or
omissions discovered" as part of its review, the parties agreed
that defendant's review was "in [its] capacity as a contractor
and not as a licensed design professional," that defendant was
"not . . . required to provide professional services that


    1
        Plaintiff relies on the general notes set forth in
drawing S201, the Foundation Plan, which provide that the
"[f]oundation design criteria is taken from [the report, and
that] [a]ll site work must comply with the requirements set forth
in this report." It is not apparent that the work at issue was
considered "site work." Moreover, the work at issue was
specified in a different drawing, S301, which governed the
"Typical Foundation Details & Sections." Drawing S301 is not
included in the record.
                              -4-                521491

constitute the practice of architecture or engineering unless
such services are specifically required" and that defendant was
"not . . . responsible for the adequacy of the performance and
design criteria specified in the Contract Documents."

      "Where the terms of a contract are clear and unambiguous,
it is settled that the rights and obligations detailed therein
should be enforced as written, with the court . . . striving to
give a fair and reasonable meaning to the language used" (AXA
Global Risks U.S. Ins. Co. v Sweet Assoc., 302 AD2d 844, 846
[2003] [internal quotation marks, brackets and citations
omitted]). Here, in effect, plaintiff suggests that defendant
was obligated to act as a design professional and to challenge
the directive in the change order. This obligation is not
supported by the unambiguous terms of the contract. Defendant
raised the issue in the RFC and, in response, the owner and
architect directed the work, which, even if it was contrary to
the recommendation set forth in the report, was not contrary to
any contractual provision applicable to defendant. Further,
because the change order was approved by both the architect and
the owner, we do not believe that any alleged dispute with regard
to the source of the "recommendation" response to the RFC
presents a material question of fact.

      Finally, we reject plaintiff's invitation to apply
negligence principles to this action (see Stevens v Bast Hatfield
Inc., 226 AD2d 981, 982 [1996]). "It is a well-established
principle that a simple breach of contract is not to be
considered a tort unless a legal duty independent of the contract
itself has been violated. This legal duty must spring from
circumstances extraneous to, and not constituting elements of,
the contract, although it may be connected with and dependent
upon the contract" (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co.,
70 NY2d 382, 389 [1987] [citations omitted]). Here, plaintiff
does not allege that defendant engaged in a negligent act or
violated a legal duty distinct from the contract (see id.;
compare Suffolk County Water Auth. v J.D. Posillico, Inc., 191
AD2d 422, 423-424 [1993]).
                        -5-                  521491

Peters, P.J., McCarthy and Rose, JJ., concur.



ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
