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

761.1
CA 10-02058
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.


DOMMER CONSTRUCTION CORPORATION,
PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

SAVARINO CONSTRUCTION SERVICES CORP.,
AND THE CINCINNATI INSURANCE COMPANY,
DEFENDANTS-RESPONDENTS.


DAMON MOREY LLP, BUFFALO (ERIC A. BLOOM OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

WESTERMANN SHEEHY KEENAN SAMAAN & AYDELOTT, LLP, UNIONDALE (CAROLYN K.
FIORELLO OF COUNSEL), FOR DEFENDANT-RESPONDENT THE CINCINNATI
INSURANCE COMPANY.

LAW OFFICE OF RALPH C. LORIGO, WEST SENECA (RALPH C. LORIGO OF
COUNSEL), FOR DEFENDANT-RESPONDENT SAVARINO CONSTRUCTION SERVICES
CORP.


     Appeal from a judgment of the Supreme Court,   Niagara County
(Richard C. Kloch, Sr., A.J.), entered January 5,   2010. The judgment
granted defendants’ motions for summary judgment,   dismissed the
complaint and denied plaintiff’s cross motion for   summary judgment.

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

     Memorandum: Defendant Savarino Construction Services Corp.
(Savarino) contracted with Niagara Falls Memorial Medical Center
(Medical Center) to construct a new emergency room and heart center
(Project) at the Medical Center. Defendant The Cincinnati Insurance
Company issued a payment bond to Savarino, and Savarino subcontracted
with plaintiff to perform an extensive portion of the construction.
After completing its work on the Project, one of the officers of
plaintiff corporation signed a conditional interim waiver of lien and
claim (Release). Pursuant to the terms of the Release, plaintiff
waived, released and relinquished “any and all claims, demands and
rights of lien to the extent of the amount shown hereon and previously
paid, for all work, labor materials, machinery or other goods,
equipment or services done, performed or furnished for the
construction located at the [P]roject.” Plaintiff accepted payment of
the amounts set forth in the Release, but thereafter commenced this
action seeking payment for overtime and extra work allegedly not
                                 -2-                           761.1
                                                         CA 10-02058

encompassed by the terms of the Release.

     Defendants each moved for summary judgment dismissing the
complaint, contending, inter alia, that the Release barred plaintiff’s
complaint, and plaintiff cross-moved for, inter alia, summary judgment
on the complaint. Supreme Court initially denied the motions and
cross motion on the ground that there were triable issues of fact
requiring a trial, but the parties thereafter stipulated to permit the
court to rule on all issues of fact and law based on the papers before
it. We conclude that the court properly granted defendants’ motions
and dismissed the complaint.

     It is well settled that “a general release is governed by
principles of contract law” (Mangini v McClurg, 24 NY2d 556, 562; see
Litvinov v Hudson, 74 AD3d 1884, 1885; Kaminsky v Gamache, 298 AD2d
361, 361) and that, where “a release is unambiguous, the intent of the
parties must be ascertained from the plain language of the agreement”
(Kaminsky, 298 AD2d at 361). Here, according to the unambiguous
language of the Release, plaintiff waived, released and relinquished
any and all claims and demands for, inter alia, all work, materials
and services performed on the Project, and thus “the fact that
[plaintiff] may have intended something else is irrelevant” (Booth v
3669 Del., 242 AD2d 921, 922, affd 92 NY2d 934 [internal quotation
marks omitted]). The Release, on its face, constitutes a complete bar
to any action on the subcontract between plaintiff and Savarino (see
Diontech Consulting, Inc. v New York City Hous. Auth., 78 AD3d 527,
528; Littman v Magee, 54 AD3d 14, 17). “Although a party may, by its
conduct, implicitly recognize that a right to additional payment has
not been extinguished by the release[] in question . . ., there is
simply no course of conduct here that could conceivably be construed
as an acknowledgment by [defendants] of plaintiff’s right to further
payment,” particularly in view of the fact that plaintiff’s officer
signed the Release after the applications for the additional payment
sought in this action had been submitted (Diontech Consulting, Inc.,
78 AD3d at 528). There is no support in the record for plaintiff’s
contention that the overtime and extra work were performed pursuant to
separate and distinct contracts with Savarino.




Entered:   June 10, 2011                        Patricia L. Morgan
                                                Clerk of the Court
