11-4903-cv (L)
Am. Underground Engineering, Inc. v. City of Syracuse


                 UNITED STATES COURT OF APPEALS
                     FOR THE SECOND CIRCUIT

                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.  CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLAT E PROCEDURE 32.1 AND THIS COURT' S
LOCAL RULE 32.1.1.   WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED
WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPE NDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER" ).      A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 4th day of June, two thousand thirteen.

PRESENT:   DENNY CHIN,
           RAYMOND J. LOHIER, JR.,
                     Circuit Judges,
           LAURA TAYLOR SWAIN,
                     District Judge.*

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AMERICAN UNDERGROUND ENGINEERING, INC.,
                    Plaintiff-Appellee,

                       -v.-                             11-4903-cv (L)
                                                        12-3297-cv (CON)
CITY OF SYRACUSE,
                       Defendant-Appellant.

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     *
          The Honorable Laura Taylor Swain, of the United States
District Court for the Southern District of New York, sitting by
designation.
FOR PLAINTIFF-APPELLEE:       KEVIN M. COX (Joseph A. Camardo,
                              Jr., on the brief), Camardo Law
                              Firm, PC, Auburn, New York.

FOR DEFENDANT-APPELLANT:      JOHN G. POWERS (James P. Youngs,
                              on the brief), Hancock Estabrook,
                              LLP, Syracuse, New York, for Mary
                              Anne Doherty, City of Syracuse
                              Corporation Counsel, Syracuse, New
                              York.

         Appeal from the United States District Court for the

Northern District of New York (Scullin, J.).

         UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

         On July 1, 2010, a jury found that defendant-appellant

City of Syracuse (the "City") had substantially breached a

construction contract entered into with plaintiff-appellee

American Underground Engineering, Inc. ("AUE") and awarded AUE

$7,306,021.64 in damages.   Post-trial, the City requested that

the district court treat the jury's verdict as advisory,

challenging the damages awarded to AUE, and seeking judgment as

a matter of law.   The City now appeals from the district court's

August 6, 2012 amended judgment correcting its October 13, 2011

judgment entered pursuant to its October 11, 2011 Memorandum-

Decision and Order, which granted remittitur to $5,312,678.00

but otherwise denied the City's motion.   We assume the parties'




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familiarity with the underlying facts, the procedural history,

and the issues on appeal.

1.     Election of Remedies

           The City argues that the district court erred because

it permitted AUE to move forward under a rescission theory on

the second day of trial, after AUE had, the City contends,

elected its damages remedy by moving for summary judgment on

liability on a breach of contract theory.    We review questions

of law de novo, see L-3 Commc'ns Corp. v. OSI Sys., Inc., 607

F.3d 24, 27-28 (2d Cir. 2010), and conclude that the City's

arguments lack merit.

           First, although summary judgment is generally treated

as the procedural equivalent of a trial, see S.J. Capelin

Assocs., Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341 (1974),

AUE's motion for summary judgment addressed liability alone.

Hence, to the extent the motion was the equivalent of a trial

for these purposes, it did not address damages or rescission at

all.    Cf. Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 263

(2d Cir. 1999) (holding that, where plaintiff did not seek to

rescind a contract and only sought quantum meruit recovery after

a jury had determined an enforceable contract existed, plaintiff

was limited to recovery under the contract).    AUE cannot be



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deemed to have elected its damages remedy when damages were not

at issue on the motion.

          Second, the motion for partial summary judgment on the

issue of liability for breach of contract was not inconsistent

with rescission and the remedy of quantum meruit.    Whether the

City had breached the contract, and whether it did so in a

manner that "substantially defeat[ed the contract's] purpose,"

Callanan v. Keeseville, Ausable Chasm & Lake Champlain R.R. Co.,

199 N.Y. 268, 284 (1910), cited in R.R. Chester, LLC v.

Arlington Bldg. Corp., 803 N.Y.S.2d 100, 101 (2d Dep't 2005),

were at the heart of this dispute.     Furthermore, if -- as the

jury found -- the City's breach defeated the purpose of the

contract, then AUE could "timely rescind and seek recovery on

the theory of quasi contract."    Clark-Fitzpatrick, Inc. v. Long

Island R.R. Co., 70 N.Y.2d 382, 389 (1987).     This would be the

case notwithstanding the general rule that the "existence of a

valid and enforceable written contract governing a particular

subject matter" precludes a quantum meruit recovery.    Id. at

388.   Hence, as the district court concluded, AUE made no

election as to its damages remedy by moving for summary judgment

as to liability alone.




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         Third, we note that, during a colloquy with the

district court and AUE regarding the propriety of the rescission

argument, the City's attorney argued:

    I guess the first thing [AUE] need[s] to do then is
    put on the record that they're withdrawing their
    breach of contract causes of action and claims and
    they're simply asking for an action for recision [sic]
    quantum meruit would be I guess would be [sic] the
    first part, your Honor.

After the City prompted AUE to elect its remedy, AUE did so --

choosing to proceed solely on a theory of rescission.    Thus, to

the extent the City now contends that the district court erred

by allowing AUE to elect its remedy during the second day of

trial, this argument has been waived.   See, e.g., In re Nortel

Networks Corp. Sec. Litig., 539 F.3d 129, 132-33 (2d Cir. 2008)

(per curiam).

         Finally, while a litigant must, of course, elect among

inconsistent remedies presented, under New York law, that

precise moment is left to the trial court's discretion "in the

light of the record as it develops."    Lukaris v. Harrison

Vending Sys., Inc., 283 N.Y.S.2d 674, 676 (3d Dep't 1967); see

also, e.g., Wilmoth v. Sandor, 686 N.Y.S.2d 388, 390-91 (1st

Dep't 1999); Baratta v. Kozlowski, 464 N.Y.S.2d 803, 809-10 (2d

Dep't 1983); Patrick M. Connors, Practice Commentaries

§ C3002:14, in N.Y. C.P.L.R. § 3002 (McKinney's 2013).    Hence,


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no legal error undermined the district court's exercise of its

discretion as to when AUE should elect its theory of damages.

2.   Waiver of Advisory Jury

         The City further claims that the district court erred

by allowing the jury to decide the rescission action, a purely

equitable claim.    The district court "may, with the parties'

consent, try any issue by a jury whose verdict has the same

effect as if a jury trial had been a matter of right."     Fed. R.

Civ. P. 39(c)(2).    The record here indicates that the parties

proceeded under the assumption that the case would be tried

before a jury.     Even after the only claim remaining was the

equitable rescission action, the parties never discussed whether

the jury should be dismissed or whether its findings should be

treated as advisory.    In fact, the phrase "advisory jury" was

never uttered until the City filed its post-trial motion.

Because "silence may be deemed 'consent' under Rule 39(c),"

Broadnax v. City of New Haven, 415 F.3d 265, 272 (2d Cir. 2005),

we conclude that the district court's adherence to the jury's

verdict, as binding, was entirely proper.

3.   Damages

         Finally, the City also raises numerous arguments

challenging the damages awarded to AUE.     We review a district

court's remittitur ruling for abuse of discretion, see, e.g.,
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Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 672 (2d Cir.

2012), and find these arguments to be without merit.    The City

conceded during oral argument that it chose below to present its

damages theory solely by cross-examining AUE's witnesses.    It

presented no witnesses, offered no evidence or alternative

damages calculations, and (except in its post-trial motion) made

none of the arguments advanced now on appeal.   Hence, the

district court was well within its discretion to find that the

jury's award of damages -- with the exception of the portion it

reduced -- was supported by AUE's evidence as presented at

trial.

         We have considered the City's remaining arguments and

conclude they are without merit.    For the foregoing reasons, we

AFFIRM the judgment of the district court.

                             FOR THE COURT:
                             Catherine O'Hagan Wolfe, Clerk




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