Opinion
680.1 CA 19-00661
12-23-2020
In the Matter of TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, Asserting Claims in Its Own Right, and as the Assignee and Real Party in Interest of the Claims of DiPizio Construction Company, Inc., Plaintiff-Petitioner-Appellant, v. ERIE CANAL HARBOR DEVELOPMENT CORPORATION, Defendant-Respondent-Respondent.
CHIESA SHAHINIAN & GIANTOMASI PC, NEW YORK CITY (ADAM P. FRIEDMAN OF COUNSEL), FOR PLAINTIFF-PETITIONER-APPELLANT. PHILLIPS LYTLE LLP, BUFFALO (WILLIAM J. BRENNAN OF COUNSEL), FOR DEFENDANT-RESPONDENT-RESPONDENT.
CHIESA SHAHINIAN & GIANTOMASI PC, NEW YORK CITY (ADAM P. FRIEDMAN OF COUNSEL), FOR PLAINTIFF-PETITIONER-APPELLANT.
PHILLIPS LYTLE LLP, BUFFALO (WILLIAM J. BRENNAN OF COUNSEL), FOR DEFENDANT-RESPONDENT-RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On a prior appeal in this breach of contract action, we concluded, among other things, that triable issues of fact existed concerning the authority of the president of defendant-respondent (defendant) to terminate a specific contract between DiPizio Construction Company, Inc. (DiPizio) and defendant in the absence of express authorization from defendant's Board of Directors (Board) ( DiPizio Const. Co., Inc. v. Erie Canal Harbor Dev. Corp. , 134 A.D.3d 1418, 1420, 23 N.Y.S.3d 762 [4th Dept. 2015] ). The parties thereafter engaged in extensive further discovery, following which plaintiff-petitioner (plaintiff) moved for partial summary judgment as to liability on the ground that, inter alia, defendant's president lacked authority to terminate the contract. Defendant, asserting that its president had such authority, moved for partial summary judgment dismissing the fifth cause of action, which sought a judgment that the contract was improperly terminated without authority.
The new information before Supreme Court on those motions included, inter alia, plaintiff's substitution for DiPizio as the "real party in interest"; the unanimous resolution of defendant's Board affirming the authority of defendant's president to manage defendant's contracts, including any provisions regarding the termination of such contracts; the affidavit of the Senior Counsel and Vice President of Capital Projects for Empire State Development (defendant's sole shareholder) asserting that "the relevant policies of defendant and [Empire State Development] expressly authorize [defendant's] president to terminate [defendant's] contracts"; and the applicable Procurement Guidelines adopted by both defendant and Empire State Development.
We now conclude, based on this expanded record, that defendant met its initial burden on its motion. Inasmuch as a corporate president has presumptive authority "to do any act which the directors could authorize or ratify," defendant's president was presumptively authorized to terminate the subject contract on defendant's behalf ( Hastings v. Brooklyn Life Ins. Co. , 138 N.Y. 473, 479, 34 N.E. 289 [1893] ; see Hardin v. Morgan Lithograph Co. , 247 N.Y. 332, 338-339, 160 N.E. 388 [1928] ). Furthermore, defendant established both that the Board had imposed no "restrictions" on its president's power to terminate contracts ( Hardin , 247 N.Y. at 339, 160 N.E. 388 ; cf. Hellman v. Hellman , 60 A.D.3d 1468, 1469, 876 N.Y.S.2d 298 [4th Dept. 2009] ) and that defendant's president had terminated the subject contract in the "ordinary course of business" ( Arrow Communication Labs. v. Pico Prods. , 206 A.D.2d 922, 923, 615 N.Y.S.2d 187 [4th Dept. 1994] ). In opposition, plaintiff failed to raise a triable issue of fact. The court therefore properly granted defendant's motion, denied plaintiff's motion, and dismissed the fifth cause of action and the first cause of action insofar as it alleged that defendant's president lacked authority to terminate the contract.
Separately, even if Justice Chimes erred in signing the order on appeal after having recused herself, plaintiff invited that ostensible error by joining defendant in drafting the proposed order for Justice Chimes's signature and thus cannot now be heard to challenge it (see generally Freidus v. Eisenberg , 71 N.Y.2d 981, 982, 529 N.Y.S.2d 69, 524 N.E.2d 423 [1988] ; Wein v. City of New York , 36 N.Y.2d 610, 620-621, 370 N.Y.S.2d 550, 331 N.E.2d 514 [1975] ; Siemucha v. Garrison , 111 A.D.3d 1398, 1401, 975 N.Y.S.2d 518 [4th Dept. 2013] ). Plaintiff's remaining contention is academic in light of our determination.