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

379
CA 14-01334
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.


VIOLET REALTY, INC.,
PLAINTIFF-APPELLANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

GERSTER SALES & SERVICE, INC.,
DEFENDANT-RESPONDENT-APPELLANT.
(APPEAL NO. 2.)


HISCOCK & BARCLAY, LLP, BUFFALO (MICHAEL E. FERDMAN OF COUNSEL), FOR
PLAINTIFF-APPELLANT-RESPONDENT.

MAGAVERN MAGAVERN GRIMM, LLP, NIAGARA FALLS (SEAN J. MACKENZIE OF
COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court, Erie
County (John F. O’Donnell, J.), entered July 18, 2014. The order,
inter alia, denied the motion of plaintiff for leave to renew, and
denied the cross motion of defendant for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the cross motion,
dismissing the complaint in its entirety, and granting defendant
judgment on its counterclaim, and as modified the order is affirmed
without costs.

     Memorandum: In October 2010, plaintiff and defendant entered
into a contract pursuant to which defendant sold and installed a
boiler at a commercial property owned by plaintiff. When plaintiff
discovered that the boiler was not producing the energy savings
anticipated at the time the contract was entered, it ceased payments
under the contract and commenced this action, alleging causes of
action for fraudulent inducement, breach of warranty, and breach of
contract. By the order in appeal No. 1, Supreme Court, inter alia,
granted that part of defendant’s motion seeking summary judgment
dismissing the fraudulent inducement cause of action and denied
plaintiff’s cross motion for leave to amend the complaint. By the
order at issue in appeal No. 2, the court, inter alia, denied
plaintiff’s motion for leave to renew with respect to the motion and
cross motion at issue in appeal No. 1 and denied defendant’s cross
motion for summary judgment dismissing plaintiff’s remaining causes of
action and for summary judgment on its counterclaim.

     In appeal No. 1, plaintiff contends that the court erred in
                                 -2-                           379
                                                         CA 14-01334

granting that part of defendant’s motion for summary judgment
dismissing the fraudulent inducement cause of action. We reject that
contention. To meet its initial burden, defendant was required to
demonstrate that it did not make a “ ‘material representation, known
to be false, made with the intention of inducing reliance, upon which
[plaintiff] actually relie[d], consequently sustaining a detriment’ ”
(Wright v Selle, 27 AD3d 1065, 1067). Defendant may also meet its
initial burden by demonstrating that its statements were “opinion or
predictions of something which it is hoped or expected will occur in
the future” (Koagel v Ryan Homes, 167 AD2d 822, 822; see American Food
& Vending Corp. v International Bus. Machs. Corp., 245 AD2d 1089,
1090, lv dismissed 91 NY2d 956). Here, defendant established that it
provided plaintiff with mere predictive estimates of cost savings from
the new boiler. Plaintiff failed to meet its burden of raising an
issue of fact with respect thereto (see generally Zuckerman v City of
New York, 49 NY2d 557, 562), and plaintiff has not appealed from that
part of the order denying its cross motion for leave to amend the
complaint to replead that cause of action. Plaintiff’s contention
that defendant’s alleged misrepresentations are more than mere
opinion, in part because plaintiff allegedly relied upon defendant’s
special knowledge, is raised for the first time on appeal and thus is
not properly before us (see generally Accadia Site Contr., Inc. v Erie
County Water Auth., 115 AD3d 1351, 1351).

     We reject plaintiff’s contention in appeal No. 2 that the court
erred in denying that part of its motion for leave to renew with
respect to defendant’s motion in appeal No. 1 inasmuch as plaintiff’s
submissions on that motion were “ ‘merely cumulative’ ” of its
submissions in opposition to the original motion (Giangrosso v Kummer
Dev. Corp., 16 AD3d 1094, 1094), and thus leave to renew was not
warranted (see Matter of Orange & Rockland Util. v Assessor of Town of
Haverstraw, 304 AD2d 668, 669). We further conclude that the court
properly denied that part of its motion for leave to renew with
respect to its cross motion in appeal No. 1. “Even assuming,
arguendo, that plaintiff offered new facts in support of [that part of
its] motion for leave to renew, we conclude that those ‘new facts not
offered on the prior [cross] motion . . . would [not] change the prior
determination’ ” (Chiappone v William Penn Life Ins. Co. of N.Y., 96
AD3d 1627, 1628, quoting CPLR 2221 [e] [2]).

     Finally, we agree with defendant in appeal No. 2 that the court
erred in denying its cross motion for summary judgment dismissing the
remaining causes of action, for breach of warranty and breach of
contract, and for summary judgment on its counterclaim for breach of
contract. We therefore modify the order in appeal No. 2 accordingly.
Defendant met its initial burden by establishing the existence of a
valid contract and that producing energy savings was not a requirement
of that contract, and thus that there was no breach of that contract
or the warranty provisions therein. Defendant also established that
plaintiff breached the contract by failing to pay the balance due (see
Resetarits Constr. Corp. v Elizabeth Pierce Olmsted, M.D. Ctr. for the
Visually Impaired [appeal No. 2], 118 AD3d 1454, 1455). In
opposition, plaintiff failed to meet its burden of raising an issue of
fact to defeat the cross motion (see generally Zuckerman, 49 NY2d at
                                 -3-                           379
                                                         CA 14-01334

562). Plaintiff’s contention that the court properly denied the cross
motion is based on new theories of liability that were raised for the
first time in opposition to defendant’s cross motion, and thus those
theories of liability may not be considered to defeat the cross motion
(see McGrath v Bruce Bldrs., Inc., 38 AD3d 1278, 1278-1279; Marchetti
v East Rochester Cent. Sch. Dist., 26 AD3d 881, 881).




Entered:   May 1, 2015                          Frances E. Cafarell
                                                Clerk of the Court
