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

1146
CA 15-00561
PRESENT: SMITH, J.P., PERADOTTO, CARNI, WHALEN, AND DEJOSEPH, JJ.


D&M CONCRETE, INC., PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

WEGMANS FOOD MARKETS, INC., DEFENDANT-RESPONDENT.


WOODS OVIATT GILMAN LLP, ROCHESTER (ROBERT D. HOOKS OF COUNSEL), AND
MCKAIN LAW FIRM, P.C., FOR PLAINTIFF-APPELLANT.

WARD GREENBERG HELLER & REIDY LLP, ROCHESTER (TONY R. SEARS OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Monroe County (Matthew A. Rosenbaum, J.), entered June 23,
2014. The order and judgment granted the motion of defendant for
summary judgment and dismissed the complaint.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

     Memorandum: In this action for breach of contract and related
relief, plaintiff appeals from an order and judgment granting
defendant’s motion for summary judgment dismissing the complaint. We
conclude that Supreme Court properly granted the motion.

     Initially, we note that plaintiff does not raise any issues
concerning the dismissal of the second, third, and fourth causes of
action and has therefore abandoned any contentions with respect
thereto (see Accadia Site Contr., Inc. v Erie County Water Auth., 115
AD3d 1351, 1351; Ciesinski v Town of Aurora, 202 AD2d 984, 984).
Plaintiff contends that defendant did not plead with sufficient
specificity and particularity its affirmative defense that plaintiff
failed to comply with a condition precedent by not exhausting the
dispute resolution procedures in the parties’ contract. We agree.
Defendant asserted as its second affirmative defense only that
“[plaintiff’s] claims fail because [defendant] has fully performed its
obligations pursuant to its agreement with [plaintiff] as modified and
in light of the failure of [plaintiff] to perform its obligations
and/or the failure of one or more conditions precedent.” We conclude
that such language lacks the specificity and particularity required by
CPLR 3015 (a) (see Nassau County v Metropolitan Transp. Auth., 99 AD3d
617, 618, lv dismissed in part and denied in part 21 NY3d 921). We
nevertheless conclude that “defendant’s failure to plead that defense
in its answer with sufficient specificity does not preclude an award
                                 -2-                          1146
                                                         CA 15-00561

of summary judgment based on that defense” (Accadia, 115 AD3d at
1352). “[A] court may grant summary judgment based upon an unpleaded
defense where . . . reliance upon that defense neither surprises nor
prejudices the plaintiff” (id. [internal quotation marks omitted]; see
Schaefer v Town of Victor, 77 AD3d 1346, 1347; see generally Foley v
D’Agostino, 21 AD2d 60, 65). Here, defendant’s reliance on the
asserted defense could not have surprised or prejudiced plaintiff
inasmuch as plaintiff “was already aware of the facts which
constituted the defense” (Herbert F. Darling, Inc. v City of Niagara
Falls, 69 AD2d 989, 990, affd 49 NY2d 855), i.e., the dispute
resolution procedures contained in the contract executed by plaintiff
(see generally Blanar v State Farm Ins. Cos., 34 AD3d 1333,
1333-1334). Inasmuch as there is no dispute that plaintiff failed to
comply with the contractual dispute resolution procedures, and that
compliance was a condition precedent to commencing a lawsuit, we
conclude that defendant established its entitlement to judgment as a
matter of law (see Acme Supply Co., Ltd. v City of New York, 39 AD3d
331, 332, lv denied 12 NY3d 701).




Entered:   November 20, 2015                   Frances E. Cafarell
                                               Clerk of the Court
