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

1371
CA 11-01067
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.


UTILITY SERVICES CONTRACTING, INC.,
PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MONROE COUNTY WATER AUTHORITY,
DEFENDANT-APPELLANT-RESPONDENT.
(APPEAL NO. 1.)


HARTER SECREST & EMERY LLP, ROCHESTER (F. PAUL GREENE OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT.

MURA & STORM, PLLC, BUFFALO (ERIC T. BORON OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Monroe County (Kenneth R. Fisher, J.), entered August 4, 2010 in a
breach of contract action. The order denied in part the motion of
defendant for summary judgment and denied plaintiff’s cross motion for
summary judgment.

     It is hereby ORDERED that said appeal from the order insofar as
it denied that part of defendant’s motion for summary judgment
dismissing the first cause of action to the extent that it sought
consequential damages is unanimously dismissed and the order is
modified on the law by granting those parts of defendant’s motion for
summary judgment dismissing the first cause of action except to the
extent that it sought consequential damages and for summary judgment
on the counterclaim in the amount of $108,000 plus prejudgment
interest and as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages
resulting from defendant’s alleged breach of a contract for a water
main installation project. By the order in appeal No. 1, Supreme
Court granted those parts of defendant’s motion for summary judgment
dismissing the second through fourth causes of action, denied those
parts of defendant’s motion for summary judgment dismissing the first
cause of action, for breach of the implied covenant of good faith and
fair dealing, and for summary judgment on the counterclaim, for
liquidated damages and attorneys’ fees, and denied plaintiff’s cross
motion for summary judgment on the amended complaint. We note that,
although the court did not address that part of the motion for summary
judgment on the issue of consequential damages, the failure to rule on
that part of the motion is deemed a denial thereof (see Brown v U.S.
                                 -2-                          1371
                                                         CA 11-01067

Vanadium Corp., 198 AD2d 863, 864). In appeal No. 2, defendant moved
for leave to reargue only that part of its motion for summary judgment
determining that plaintiff was contractually precluded from seeking
consequential damages. The court granted the motion for leave to
reargue and, upon reargument, the court noted that only that part of
its prior order concerning the first cause of action was at issue, and
it concluded that defendant was not entitled to summary judgment on
the issue of consequential damages. We note at the outset that
defendant’s appeal from the order in appeal No. 1 must be dismissed
with respect to the issue of consequential damages inasmuch as it was
superseded by the order in appeal No. 2 (see Loafin’ Tree Rest. v
Pardi [appeal No. 1], 162 AD2d 985).

     We agree with defendant in each appeal that the first cause of
action, for breach of the implied covenant of good faith and fair
dealing, must be dismissed. We therefore modify the order in each
appeal accordingly. We conclude that the first and second causes of
action are duplicative inasmuch as they both allege that defendant
breached the contract in question by interfering with subcontractors
and refusing to grant appropriate extensions, thus preventing
plaintiff from completing the contract in a timely manner (see New
York Univ. v Continental Ins. Co., 87 NY2d 308, 319-320; Hassett v New
York Cent. Mut. Fire Ins. Co., 302 AD2d 886; see generally Bass v
Sevits, 78 AD2d 926, 927). We note that the allegations underlying
the first cause of action occurred prior to a written amendment to the
contract whereby defendant granted plaintiff an extension. With
respect to defendant’s interference and failure to grant an additional
extension following that amendment, as alleged in the second cause of
action, defendant met its initial burden on the motion and plaintiff
failed to submit evidence sufficient to raise a triable issue of fact
whether an additional extension was requested in writing as required
by the contract (see generally Zuckerman v City of New York, 49 NY2d
557, 562). Further, the parties’ prior conduct in requesting and
granting an extension to the contractual time limit in writing belie
the contention of plaintiff that the contract’s requirements with
respect thereto were waived (see Phoenix Corp. v U.W. Marx, Inc., 64
AD3d 967, 969-970; Charles T. Driscoll Masonry Restoration Co., Inc. v
County of Ulster, 40 AD3d 1289, 1291-1292). In light of our
conclusion that defendant is entitled to summary judgment dismissing
the amended complaint in its entirety, the issue whether plaintiff is
entitled to consequential damages is moot.

     Contrary to plaintiff’s contention on its cross appeal in appeal
No. 1, the court properly granted those parts of defendant’s motion
for summary judgment dismissing the third cause of action, for
promissory estoppel, and the fourth cause of action, for unjust
enrichment. We further conclude that plaintiff failed to establish
that facts essential to justify opposition to the motion were in the
exclusive possession of defendant (see Santangelo v Fluor Constructors
Intl., 266 AD2d 893).

     We also agree with defendant in appeal No. 1 that the court erred
in denying that part of its motion for summary judgment on the
                                 -3-                          1371
                                                         CA 11-01067

counterclaim. There is no triable issue of fact with respect to
defendant’s entitlement to liquidated damages calculated from the
original contractual completion date of August 1, 2002, inasmuch as
the contractual amendment expressly reserved defendant’s right to
those damages. Further, although defendant entered into a release
agreement pursuant to which plaintiff’s surety would assess only
$75,000 in liquidated damages against the performance bond issued by
it, defendant expressly reserved its right to seek the remainder of
liquidated damages from plaintiff. We therefore further modify the
order in appeal No. 1 by granting that part of defendant’s motion for
summary judgment on the counterclaim in the amount of $108,000 plus
prejudgment interest, constituting the remainder of liquidated damages
owed following the surety’s payment of $75,000 (see generally CPLR
5001 [a]). The remaining contentions of defendant in appeal No. 1 are
moot.

     Finally, we note that plaintiff abandoned any challenge to the
order in appeal No. 2 inasmuch as it failed to raise any contentions
with respect to the only part of the order by which plaintiff is
aggrieved (see CPLR 5511), i.e., that part denying its request for
costs and attorneys’ fees associated with the motion (see Ciesinski v
Town of Aurora, 202 AD2d 984).




Entered:   December 30, 2011                    Frances E. Cafarell
                                                Clerk of the Court
