Opinion
964 CA 21-01323
04-28-2023
Paul MARINACCIO, Sr., Plaintiff-Respondent, v. TOWN OF CLARENCE, Defendant-Appellant.
WEBSTER SZANYI LLP, BUFFALO (MICHAEL P. MCCLAREN OF COUNSEL), FOR DEFENDANT-APPELLANT. RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (R. ANTHONY RUPP, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
WEBSTER SZANYI LLP, BUFFALO (MICHAEL P. MCCLAREN OF COUNSEL), FOR DEFENDANT-APPELLANT.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (R. ANTHONY RUPP, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is affirmed without costs.
Memorandum: The facts and procedural history of this case are set forth in our decisions on the prior appeals ( Marinaccio v. Town of Clarence , 90 A.D.3d 1599, 936 N.Y.S.2d 412 [4th Dept. 2011], revd 20 N.Y.3d 506, 964 N.Y.S.2d 69, 986 N.E.2d 903 [2013], rearg denied 21 N.Y.3d 976, 970 N.Y.S.2d 744, 992 N.E.2d 1088 [2013] ; Marinaccio v. Town of Clarence , 151 A.D.3d 1784, 57 N.Y.S.3d 590 [4th Dept. 2017], lv dismissed 30 N.Y.3d 1039, 69 N.Y.S.3d 253, 91 N.E.3d 1232 [2017] ). Defendant now appeals from an order that, inter alia, denied its motion seeking summary judgment dismissing the complaint and partial summary judgment on its counterclaims. We affirm.
As a preliminary matter, we agree with defendant that the doctrine of law of the case does not preclude its contentions on this appeal (see Freeland v. Erie County , 204 A.D.3d 1465, 1466, 167 N.Y.S.3d 683 [4th Dept. 2022] ).
We conclude, however, that defendant failed to meet its burden of establishing entitlement to judgment as a matter of law with respect to the causes of action for breach of contract and for recovery of attorney's fees arising from the alleged breach of contract. "The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach" ( Wilsey v. 7203 Rawson Rd., LLC , 204 A.D.3d 1497, 1498, 168 N.Y.S.3d 198 [4th Dept. 2022] ). Here, the parties do not dispute that a contract existed, i.e., a settlement agreement that, inter alia, obligated plaintiff to deed certain property to defendant and obligated defendant to construct a drainage ditch on the deeded property for the purpose of draining storm water from a subdivision, and that plaintiff performed under the contract. In support of the motion, defendant submitted evidence that it constructed a drainage ditch on the deeded property and that the contract contained no specific standards or specifications for the construction of the drainage ditch. Defendant also submitted, however, the deposition testimony of plaintiff, a highway construction contractor with storm sewer and ditch construction experience, that the drainage ditch was improperly graded and not large enough for its intended purpose of diverting storm water from the subdivision without flooding plaintiff's property. Thus, notwithstanding the absence of specific terms in the contract describing defendant's performance, defendant's own submissions raise questions of fact whether defendant breached an implied promise to perform the contract in a skillful and workmanlike manner (see Rush v. Swimming Pools by Jack Anthony , Inc. , 98 A.D.3d 728, 729-730, 950 N.Y.S.2d 192 [2d Dept. 2012] ; see generally TJJK Props., LLC v. A.E.Y. Eng'g, D.P.C. , 186 A.D.3d 1080, 1081-1082, 130 N.Y.S.3d 168 [4th Dept. 2020] ).
We further conclude that defendant failed to meet its burden for summary judgment on its counterclaims against plaintiff for breach of contract, trespass, and nuisance, which are based on allegations that plaintiff constructed furrows that drained into the ditch, inasmuch as defendant's own submissions raised issues of fact. With respect to the breach of contract and trespass counterclaims, defendant submitted plaintiff's deposition testimony in which he testified that he never created the furrows allegedly connecting to the ditch and, to the extent that he did construct furrows, doing so did not constitute a breach of the contract or a trespass because he did so with the consent of defendant (see generally Pearl St. Parking Assoc. LLC v. County of Erie , 207 A.D.3d 1029, 1031-1032, 172 N.Y.S.3d 250 [4th Dept. 2022] ). Moreover, defendant failed to submit any evidence that plaintiff interfered with defendant's right to use and enjoy its property, i.e., the deeded property upon which it was to construct a drainage ditch, which is an element of the nuisance counterclaim (see Copart Indus., Inc . v. Consolidated Edison Co. of N.Y. , Inc ., 41 N.Y.2d 564, 570, 394 N.Y.S.2d 169, 362 N.E.2d 968 [1977], rearg denied 42 N.Y.2d 1102, 399 N.Y.S.2d 1028, 369 N.E.2d 1198 [1977] ).
We have considered defendant's remaining contention and conclude that it does not warrant modification or reversal of the order.
All concur except Peradotto, J., who concurs on constraint of Marinaccio v. Town of Clarence, 151 A.D.3d 1784, 57 N.Y.S.3d 590 [4th Dept. 2017], lv dismissed 30 N.Y.3d 1039, 69 N.Y.S.3d 253, 91 N.E.3d 1232 [2017] ).