Opinion
No. A833/2014.
07-31-2015
Burrstone Energy Center, LLC, Plaintiff, v. Cummins Northeast, Inc., and CUMMINS NORTHEAST, LLC, Defendants.
Hinckley, Allen & Snyder LLP, Albany, Attorneys for Plaintiff (James J. Barriere and Christopher V. Fenlon, of counsel). Nixon Peabody LLP, Albany, Attorneys for Defendants (Samuel Goldblatt and Leah Threatte Bojnowski, of counsel).
Hinckley, Allen & Snyder LLP, Albany, Attorneys for Plaintiff (James J. Barriere and Christopher V. Fenlon, of counsel).
Nixon Peabody LLP, Albany, Attorneys for Defendants (Samuel Goldblatt and Leah Threatte Bojnowski, of counsel).
RICHARD M. PLATKIN, J.
In this commercial action, defendant Cummins Northeast LLC ("Cummins LLC" or "defendant") moves, pre-discovery, for partial summary judgment on its counterclaims seeking a declaratory judgment that it lawfully terminated a maintenance agreement with plaintiff Burrstone Energy Center, LLC ("Burrstone") (the first and second counterclaims) and for dismissal of the breach of contract and wrongful termination of contract claims asserted against it in the amended complaint (the fourth and fifth causes of action). Burrstone moves for partial summary judgment on the issues of defendants' liability on its breach of contract and wrongful termination causes of action (the first, third, fourth, and fifth causes of action) and for dismissal of defendant's first counterclaim, which seeks a declaration that the maintenance agreement expired without renewal. Defendant Cummins Northeast Inc. ("Cummins Northeast") cross-moves for partial summary judgment dismissing the breach of contract and wrongful termination of contract claims alleged against it (the first, second, and third causes of action).
BACKGROUND
Burrstone is a company formed to construct and operate a co-generation plant, and Cummins Northeast was an authorized distributor of parts and service for Cummins power generators. On September 28, 2009, Burrstone and Cummins Northeast entered into a Maintenance Agreement ("Agreement") whereby Cummins Northeast would service and maintain four generators ("GenSets") purchased by Burrstone in exchange for payment of a specified annual fee. With respect to the duration of the Agreement, the contract states as follows:
ARTICLE 2
TERM AND RENEWAL
2.1 The term of this Agreement commences on the date when all of the GenSets at the Site are commissioned in accordance with the Contract Documents ("Commission Date") and, unless terminated earlier for cause as a result of nonpayment of any amounts due hereunder by Customer and a failure to cure said payment deficiency within ten (10) days of receipt of written notice, or as otherwise terminated in accordance with the provisions of this Agreement. The length of this agreement is 5 years then 1 five year renewable for a total of a 10 year agreement. The payments and pricing terms and conditions set forth in Article 7 of this agreement shall apply for the entire ten year term. The agreement is based on the GenSets having an annual aggregate of 24,000 run hours calculated on (3) Qsv81 Gensets @ 6000 Run hours each and (1) QSK 19 Genset @ 6000.
2.2 If either party wishes to renew this Agreement beyond the 10 year term, it shall so notify the other party in writing not less than ninety (90) days prior to the end of the Term. Following such notice the parties shall negotiate the terms and conditions to apply to a three (3) year (maximum) renewal term. If neither party gives a notice requesting a renewal, or if within sixty (60) days of the giving of such notice, the parties fail to agree on the terms and conditions (including price) for the renewal Term, this Agreement shall expire at the end of the Term.
In November 2010, defendant allegedly purchased the assets of Cummins Northeast comprising its distribution, sales and service business, including rights and obligations under the Agreement. Following this transaction, Cummins Northeast changed its name to CNE Lights Out, Inc. ("Lights Out"), wound up its affairs and later was dissolved under Massachusetts law.
Beginning in 2011, Burrstone experienced problems with certain GenSets, which Cummins LLC repaired. However, defendant requested reimbursement for these services, asserting that the repair work was caused by Burrstone's failure to properly maintain and/or operate the GenSets. Burrstone refused to provide reimbursement to defendant.
On May 15, 2014, Cummins LLC notified Burrstone that it did not intend to renew the Agreement beyond its initial five-year term, which was set to expire on September 28, 2014. Defendant then completed a scheduled major maintenance ("M5 maintenance") on one of the GenSets. On July 9, 2014, after the M5 maintenance was complete, Burrstone objected in writing to defendant's notice of non-renewal and asserted that Cummins LLC was obliged to continue to perform under the Agreement "for its entire 10 year term". In August 2014, Cummins LLC notified Burrstone that it was immediately terminating the Agreement pursuant to Sections 7.6 and 11.2 based upon Burrstone's failure to timely remit payment on two invoices. Burrstone objected and demanded that defendant continue to perform.
Burrstone commenced this action shortly thereafter, seeking damages for defendants' alleged breach of contract and wrongful termination of the Agreement. Cummins LLC seeks a declaratory judgment that it was within its rights to not renew the Agreement and the recovery of certain maintenance costs. Following joinder of issue, each party has moved for summary judgment. Oral argument on the motions was held on July 8, 2015, and this Decision and Order follows.
ANALYSIS
"To prevail on a motion for summary judgment, the moving party must establish prima facie entitlement to judgment as a matter of law by adducing sufficient competent evidence to show that there are no issues of material fact" (Staunton v. Brooks, 2015 N.Y. Slip Op 05248, *2 [3d Dept June 18, 2015] [citations omitted]; see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ). If the movant fails to satisfy this initial burden, the motion must be denied, "regardless of the sufficiency of the opposing papers" (Alvarez, 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). But if the movant satisfies the initial burden, the burden shifts to the nonmoving party to demonstrate that material issues of fact or a legal defense to the claim exist (id. ).
A. Renewal of the Agreement
Burrstone contends that it is entitled to summary judgment on its first and fourth causes of action, alleging that defendant did not have the unilateral right to terminate the Agreement at the end of five years and that defendant's refusal to continue to perform constitutes a breach of the Agreement. Cummins LLC's first counterclaim seeks a declaration that it had the right to decline to renew the Agreement after five years, that its notice of non-renewal was effective and, therefore, the Agreement expired on September 28, 2014.
In interpreting the Agreement, the Court must be "guided by basic principles of contract interpretation which instruct that a contract should be construed to give effect to the parties' intent as gleaned from the four corners of the document itself, provided that its terms are clear and unambiguous" (Elmira Teachers' Assn. v. Elmira City School Dist., 53 A.D.3d 757, 759, 861 N.Y.S.2d 195 [3d Dept 2008], lv denied 11 NY3d 709 [2008] ). Contract language must be interpreted in accordance with the plain and ordinary meaning of the words used (see South Rd. Assocs., LLC v. International Bus. Machines Corp., 4 N.Y.3d 272, 277 [2005] ; Elmira Teachers' Assn., 53 A.D.3d at 759, 861 N.Y.S.2d 195 ). Further, the Court should refrain from placing undue emphasis upon any particular word or phrase or reading the contract in a manner that renders any portion thereof meaningless (see Beal Sav. Bank v. Sommer, 8 N.Y.3d 318, 324–325 [2007] ; South Rd. Assocs., 4 N.Y.3d at 277, 793 N.Y.S.2d 835, 826 N.E.2d 806 ; Stevens & Thompson Paper Co., Inc. v. Niagara Mohawk Power Corp., 49 A.D.3d 1011, 1013, 853 N.Y.S.2d 423 [3d Dept 2008] ).
Whether an agreement is ambiguous is a question of law for the Court (Mary Imogene Bassett Hosp. v. Cannon Design, Inc., 127 A.D.3d 1377, 1379 [3d Dept 2015] ; see Consedine v. Portville Cent. School Dist., 12 N.Y.3d 286, 293 [2009] ; South Rd. Assocs., 4 N.Y.3d at 277, 793 N.Y.S.2d 835, 826 N.E.2d 806 ). "An agreement is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion" (Ellington v. EMI Music, Inc., 24 N.Y.3d 239, 244 [2014] [internal quotation marks and citations omitted] ). Ambiguity exists, however, "when specific language [in the agreement] is susceptible of two reasonable interpretations' " (id., quoting State of New York v. Home Indem. Co., 66 N.Y.2d 669, 671 [1985] ; see Wiggins v. Kopko, 94 A.D.3d 1268, 1269, 942 N.Y.S.2d 666 [3d Dept 2012] ; Angelino v. Freedus, 69 A.D.3d 1203, 1205, 893 N.Y.S.2d 668 [3d Dept 2010] ; Pozament Corp. v. AES Westover, LLC, 27 A.D.3d 1000, 1001, 812 N.Y.S.2d 154 [3d Dept 2006] ).
Central to the parties' dispute is Section 2.1 of the Agreement, which states that "[t]he length of this agreement is 5 years then 1 five year renewable for a total of a 10 year agreement." No party contends that this language is ambiguous; rather, each side insists that its interpretation is the only reasonable one.
In that regard, Burrstone argues that Section 2.1, when read together with the other provisions of the Agreement, unambiguously provides for a contract term of ten years. While not entirely clear as to whether renewal at the expiration the initial five-year period occurs automatically or is triggered at its unilateral option, Burrstone contends that, either way, the result is the same: the Agreement has a term of ten years, unless terminated for cause or by the mutual agreement of the parties.
In support of this position, Burrstone first relies on references in Section 2.1 of the Agreement to a ten-year term. Burrstone emphasizes the language manifesting the parties' intent to enter into a "a total of a 10 year agreement" and their agreement that the payment and pricing terms "shall apply for the entire ten year term". Article 7 of the Agreement, which governs payment and pricing, similarly establishes that the contract price was based upon maintenance being performed "for a 10 year period". Burrstone further relies upon Section 2.2, which establishes a process for renewal through mutual consent "[i]f either party wishes to renew th[e] Agreement beyond the 10 year term". Burrstone distinguishes this provision from Section 2.1, which does not establish a process for renewing (or terminating) the Agreement after its initial five-year term, and argues that this difference evidences the parties' intent that the Agreement be automatically renewed absent mutual agreement to the contrary.
The sole grounds for unilateral termination are set forth in Article 11, which governs termination for cause.
Cummins LLC counters that the only reasonable interpretation of Section 2.1 is that the Agreement was renewable after five years on the same terms and conditions, but only upon the parties' mutual assent. According to defendant, this interpretation is consistent with the plain meaning of the term "renewable", which refers to an agreement that is capable of being renewed. Through the use of the term "renewable", defendant argues, the parties manifested an intention to require an active reestablishment of their contractual relationship at the end of the initial five-year term. This interpretation is said to be commercially reasonable and in line with "the fundamental policy that contracts be predicated on the mutual assent of the parties" (citing Todd v. Krolick, 96 A.D.2d 695, 466 N.Y.S.2d 788 [3d Dept 1983] ).
Cummins LLC maintains that Burrstone's reading of the Agreement as providing for a ten-year term fails to give meaning and effect to the term "renewable" or the division of the Agreement into an initial five-year term and a subsequent five-year renewal term. Further, in the absence of specific language making renewal automatic or at one side's unilateral option, defendant claims that Burrstone's interpretation would oblige the Court to rewrite the Agreement by adding new or different terms.
To meet the burden of obtaining summary judgment, each party was required to establish as a matter of law that its interpretation of the term and renewal provisions of the Agreement is the only reasonable one. Given the problematic nature of each of the proffered interpretations, however, the Court concludes that this burden has not been met by any party.
As argued by defendant, the term "renewable" connotes an agreement that is capable of being renewed. If the Agreement is interpreted as automatically renewing after the five years—effectively providing for a ten-year term, as Burrstone contends—then the critical language of Section 2.1 making the Agreement "renewable" is not accorded its plain and ordinary meaning. While it is important not to place excessive emphasis on particular words and phrases, the parties' deliberate use of the term "renewable" and the plain meaning of the term cannot be ignored, particularly in the context of an Agreement that is broken down to an initial five-year term and a second "five year renewable" term (see South Rd. Assocs., 4 N.Y.3d at 277, 793 N.Y.S.2d 835, 826 N.E.2d 806 ; Stevens & Thompson Paper Co., 49 A.D.3d at 1013, 853 N.Y.S.2d 423 ). If the parties intended to enter into what amounts to a straight ten-year Agreement, the language they employed certainly was an idiosyncratic way of expressing that intention. And insofar as Burrstone contends that renewal was available at its unilateral election, there is nothing in the Agreement that expressly confers this option upon it.
To be sure, the Agreement does refer to a ten-year term in a number of places, thereby lending support to Burrstone's position. And a contract that is made "renewable" but provides no mechanism for renewal may, in some circumstances, be construed as automatically renewing (see L. Orlik Ltd. v. Helme Products Inc., 427 F.Supp. 771, 774 [SDNY 1977] ["contract will be renewable"]; cf. Nicholas Labs., Ltd. v. Almay, Inc., 900 F.2d 19 [2d Cir1990] [agreement "shall continue ... for successive periods of" five years, subject to various methods of termination] ) . Further, although the present record is insufficiently developed for the Court to assess the commercial reasonableness of the parties' competing interpretations, the payment of a flat annual maintenance fee computed on the basis of maintenance being performed over "a 10 year period" (Section 7.1.1), including the costly and time-consuming M5 maintenance, is some evidence of a mutual intent that the Agreement would continue over the full ten-year period.
In Orlik,the contract contained no mechanism for renewal, but it did contain a mechanism by which either party could terminate the contract upon proper notice to the counter-party (see427 F.Supp. at 774 ). Here, only termination for cause is available, absent an extrinsic agreement by the parties to terminate the Agreement.
Cummins LLC's interpretation of the Agreement suffers from its own flaws. While it gives meaning and effect to the term "renewable", it requires the Court to impose a renewal process that is not established in the Agreement. There is nothing in the Agreement that conditions renewal upon mutual assent. The omission of such language is particularly significant in light of Section 2.2, which establishes a process that requires notice, negotiation of new terms and conditions (including price) and, ultimately, mutual agreement for any renewal "beyond the 10 year term". Moreover, the Court has serious doubts about the commercial reasonableness of an interpretation that commits a vendor to maintain payment and pricing terms "for the entire ten year term" (Section 2.1), but then gives the vendor the unilateral option of declining to renew after five years, effectively rendering the pricing guarantee illusory.
Under the circumstances, it is not possible to discern the parties' intent from the four corners of the Agreement (see Sutton v. East Riv. Sav. Bank, 55 N.Y.2d 550, 555 [1982] ; Currier, McCabe & Assoc. v. Maher, 75 A.D.3d 889, 891–892, 906 N.Y.S.2d 129 [3d Dept 2010] ). The phrase "[t]he length of this agreement is 5 years then 1 five year renewable", even when read together with all of the other provisions of the Agreement, simply is not susceptible to one reasonable interpretation as a matter of law and, thus, it is ambiguous (see St. Mary v. Paul Smith's College of Arts & Sciences, 247 A.D.2d 859, 668 N.Y.S.2d 813 [4th Dept 1998] ; see also Lash Corp. v. Fisher Hamilton Scientific, Inc., 1996 U.S. Dist LEXIS 2748 [WDNY 1996]; Wiggins, 94 A.D.3d at 1269, 942 N.Y.S.2d 666 ; Angelino, 69 A.D.3d at 1205, 893 N.Y.S.2d 668 ; Pozament Corp., 27 A.D.3d at 1001, 812 N.Y.S.2d 154 ).
Consequently, summary judgment cannot be granted to either party on this issue (see F & K Supply Inc. v. Willowbrook Dev. Co., 288 A.D.2d 713, 714, 732 N.Y.S.2d 734 [3d Dept 2001] ; see also Lash Corp., 1996 U.S. Dist LEXIS 2748, at 7–8; St. Mary, 247 A.D.2d at 859–860 ).
To the extent that the relief sought by Burrstone is denied as against Cummins LLC, it is also denied against Cummins Northeast for the same reasons.
B. Termination of the Agreement for Cause
Cummins LLC also contends that it properly terminated the Agreement for cause as of August 15, 2014, in accordance with a notice of default sent to Burrstone on July 15, 2014.
Under Section 7.6 of the Agreement, defendant may terminate the Agreement if Burrstone defaults in payment, unless payment is remitted "within thirty (30) days of written notice of a default." Similarly, Section 11.2 provides:
Either party ("the Non-defaulting Party") may terminate this Agreement forthwith, without thereby incurring any liability, if the other party ("the Defaulting Party") has failed to carry out or perform its obligations as set out in this Agreement and such failure is not remedied within thirty (30) days of written notice of such failure from the Non-defaulting Party provided that if the failure is not a failure to pay money and cannot be remedied within such 30 day period, such longer period as is required to so remedy the failure on condition that the Defaulting Party commences to remedy the failure within the 30 day period and thereafter diligently continues to take all steps required to remedy the failure.
On July 15, 2014, Cummins LLC sent Burrstone written notice of its default in remitting payment for the months of April and May 2014. However, the notice was not sent to Burrstone's attorney, as required by Article 19. The notice of default advised Burrstone that its failure to remit payment within thirty days would constitute a default. Burrstone maintains that, because the notice was not sent to its counsel and the employee to whom the notice was sent was out of the country at the time, it did not receive actual notice of the alleged default until July 21, 2014.
Article 19 provides that any "[n]otices permitted or required to be given" must be sent to the addresses of the respective parties and also "shall be provided in writing to" Burrstone's attorney at Couch White, LLP.
On July 25, 2014, Burrstone remitted payment to defendant for the month of April. On August 15, 2014, defendant notified Burrstone that it was terminating the Agreement due to Burrstone's failure to fully cure its default within thirty days of the July 15, 2014 notice. Burrstone remitted payment on the May invoice on August 18, 2014 and that payment was accepted by defendant.
Cummins LLC convincingly argues that its failure to send the July 15, 2014 notice to Burrstone's counsel did not necessarily render the notice ineffective, inasmuch as Burrstone acknowledges that it received actual notice (Suarez v. Ingalls, 282 A.D.2d 599, 599–600, 723 N.Y.S.2d 380 [2d Dept 2001] ; Baker v. Norman, 226 A.D.2d 301, 303–304, 643 N.Y.S.2d 30 [1st Dept 1996], lv dismissed 88 N.Y.2d 1040 [1996] ; Dellicarri v. Hirschfield, 210 A.D.2d 584, 585, 619 N.Y.S.2d 816 [3d Dept 1994] ). However, given defendant's breach of its obligation to provide notice to Burrstone's counsel, it would be improper to give defendant the benefit of the provision in Article 19 deeming notices to "be effective as of the date stamped on the [mailing] receipt". For this reason, and to mitigate any prejudice to Burrstone resulting from defendant's non-compliance with Article 19, the Court concludes that the thirty-day cure period shall be deemed to have commenced on the day that Burrstone received actual notice. As Burrstone remitted payments for both of the overdue invoices within thirty days of the receipt of actual notice, defendant was not entitled to terminate the Agreement under Sections 7.6 or 11.2 based upon Burrstone's default.
Accordingly, Cummins LLC is not entitled to a declaratory judgment that the Agreement properly was terminated for cause as of August 15, 2014.
C. Continuing Performance of the Agreement Pending Resolution of this Dispute
Pursuant to Article 16 of the Agreement, the parties agreed to "attempt to resolve any disputes with respect to issues arising out of [the] Agreement in an amicable fashion, through negotiation". If the parties were "unable to resolve a dispute within ten (10) Business Days, the matter may be referred to mediation". The parties further agreed that "the existence of any dispute shall not interfere with the performance by the parties of their respective obligations under the Agreement."
Burrstone contends that the plain language of Article 16 requires defendant to continue to perform under the Agreement pending the resolution of any disputes, including the instant dispute as to whether the Agreement remains in effect. Accordingly, Burrstone seeks partial summary judgment on its claim that defendant is in breach of Article 16. Cummins LLC responds that the plain language of the Agreement does not compel continued performance under an expired agreement and, in any event, the absence of a mandatory arbitration clause distinguishes this case from ones in which continuing performance has been directed.
Most of the relevant cases cited by Burrstone involve applications for preliminary injunctions, with the contractual dispute clauses serving as a predicate for the imposition of a preliminary injunction in aid of arbitration (see e.g. Recon/Optical, Inc. v. Government of Israel, 816 F.2d 854 [2d Cir1987] ; Organizing Comm. for the 1998 Goodwill Games v. Goodwill Games, 919 F.Supp. 21 [D DC 1995] ; Project Orange Assocs., LLC v. General Elec. Intl., Inc., 23 Misc.3d 764, 872 N.Y.S.2d 857 [Sup Ct N.Y. County 2009] ). But Burrstone expressly disclaims any intention of pursuing injunctive relief on the basis of Article 16 (Plaintiff's Reply Brief, dated March 6, 2015 ["Reply Brief], at 6). Indeed, the record shows that Cummins LLC "has continued to provide maintenance services ... at [Burrstone's] request on a purchase order basis" and that "[a]t no time has [defendant] refused to service [Burrstone's] equipment".
That leaves Burrstone with a claim for damages. However, it appears on this record that Burrstone has not and will not sustain any damages attributable solely to defendant's alleged breach of Article 16. If the Court ultimately rules that Burrstone's interpretation of the Agreement is correct, any damages attributable to defendant's non-performance during the pendency of this dispute appear to be the same as (or a subset of) the damages attributable to defendant's failure to perform under the Agreement for its full ten-year term. And if defendant's position that the Agreement terminated after five years is proven correct, then defendant ceased having obligations to perform under the Agreement as of September 28, 2014. Moreover, a grant of partial summary judgment on this issue will have no direct effect on the parties' legal relationship during the pendency of this action or on the damages flowing from defendants' alleged breaches of contract.
Burrstone recognizes as much, stating that "it will be for defendants to decide whether to continue to breach the Agreement by refusing to perform pending final resolution of this dispute and for the Court to decide the extent of [plaintiff's] damages" (Reply Brief, at 6). In this connection, the Court observes that willfulness is not an element of Burrstone's breach-of-contract claim, and a willful breach of contract would not subject defendant to exemplary damages under the facts and circumstances alleged in the Complaint (New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 315–316 [1995] ; Rocanova v. Equitable Life Assur. Socy. of U.S., 83 N.Y.2d 603, 613 [1994] ).
Under the circumstances, this branch of Burrstone's motion is denied as premature, without prejudice to renewal.
D. Assignment of the Agreement to Cummins LLC
Lights Out cross-moves for summary judgment, claiming that the pertinent factual allegations of the amended complaint do not pertain to it. According to Lights Out, Cummins Northeast ceased operating as a Cummins distributor in 2010, when its entire business, including its rights and obligations under the Agreement, were purchased by Cummins LLC. Lights Out further contends that the plain language of the Agreement permitted this assignment without the consent of Burrstone.
As pertinent here, Article 20 provides:
Neither party shall have the right to assign or otherwise transfer its right and obligations under the Agreement except with the written consent of the other party, provided, that (I) a successor in interest by merger, operation of law, assignment or purchase, or otherwise of the entire business of either party shallacquire all interest of such party hereunder....
* * *
Notwithstanding the foregoing, without the consent of the [plaintiff], in the event that a new DISTRIBUTOR is appointed by Cummins [Inc.] to replace [Cummins Northeast], [Cummins Northeast] may assign this Agreement to Cummins [Inc.] or to such newly appointed DISTRIBUTOR. [Cummins Northeast] shall be released from all obligations hereunder as and from the date that this Agreement is assumed by Cummins [Inc.] or by the newly appointed DISTRIBUTOR.
Lights Out asserts that Cummins LLC purchased all of Cummins Northeast's assets and became the new distributor for Cummins Inc., a separate corporation that manufactures the GenSets, as of November 1, 2010. As such, Lights Out claims that all of Cummins Northeast's rights and obligations under the Agreement were permissibly assigned to defendant as of that date, and the consent of Burrstone was not required for the assignment. As an independent ground for the assignment, Lights Out alleges that Cummins Inc. has appointed defendant to replace Cummins Northeast as its distributor.
While the arguments advanced by Lights Out are not without force, defendants have failed to submit sufficient admissible evidence to establish that Cummins LLC did, in fact, purchase the entire business of Cummins Northeast. Likewise, no documentation has been submitted demonstrating that Cummins LLC was appointed as the replacement distributor in place of Cummins Northeast. Inasmuch as Lights Out has failed to satisfy its initial burden, it is not entitled, on this record, to summary judgment.
CONCLUSION
Accordingly it is
ORDERED that the cross motion of defendant CNE Lights Out Inc ., formerly known as Cummins Northeast, Inc., for partial summary judgment dismissing the amended complaint as against it is denied; and it is further
ORDERED that plaintiff's motion for partial summary judgment on its first, third, fourth and fifth causes of action in the amended complaint is denied; and it is further
ORDERED that defendant Cummins Northeast LLC's motion for partial summary judgment seeking a declaratory judgment on its counterclaims and dismissing the fourth and fifth causes of action in the amended complaint is denied; and it is finally
ORDERED that the parties shall confer regarding a schedule for discovery and the filing of a note of issue and, within thirty (30) days, either: (i) stipulate to a scheduling order, which shall be submitted to the Court for approval; or (ii) request a scheduling conference with the Court.
This constitutes the Decision and Order of the Court. The original Decision and Order is being transmitted to plaintiff's counsel for filing and service. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.
| Papers | Considered: |
|---|---|
| Defendant Cummins Northeast LLC's Notice of Motion, | dated January 30, 2015; |
| Memorandum of Law in Support of Defendant Cummins Northeast LLC's Motion, | dated January 30, 2015; |
| Memorandum of Law in Opposition, | dated February 25, 2015 |
| Affirmation of James J. Barriere, Esq., | dated February 25, 2015, with attached Exhibit A; |
| Affidavit of Daniel A. Davis, | sworn to January 30, 2015, with attached Exhibits 1–7; |
| Affidavit of John Moynihan, | sworn to February 24, 2015, with attached Exhibits A–J; |
| Defendant Cummins Northeast LLC's Statement of Material Facts, | dated January 30, 2015; |
| Plaintiff's Counter-statement of Material Facts, | dated February 25, 2015; |
| Defendants Cummins Northeast LLC's Response to Plaintiff's Counter-statement of Facts, | dated March 6, 2015; |
| Plaintiff's Notice of Motion | dated January 30, 2015; |
| Memorandum of Law in Support of Plaintiff's Motion, | dated January 30, 2015; |
| Defendants' Memorandum of Law in Opposition to Plaintiff's Motion, | dated February 25, 2015; |
| Plaintiff's Reply Memorandum of Law, | dated March 6, 2015; |
| Affirmation of James J. Barriere, Esq., | dated January 30, 2015, with attached Exhibits A–H; |
| Affidavit of John Moynihan, | sworn to January 29, 2015, with attached Exhibits A–F; |
| Plaintiff's Statement of Material Facts, | dated January 30, 2015; |
| Affidavit in Opposition to Plaintiff's motion and in Support of Defendants' motions of David R. Letts, | sworn to February 23, 2015, with attached Exhibit A; |
| Affidavit in Opposition to Plaintiff's motion and in Support of Defendants' motions of Daniel A. Davis, | sworn to February 23, 2015, with attached Exhibits A–C; |
| Affirmation of Leah Threatte Bojnowski, Esq., | dated February 24, 2015, with attached Exhibits A–F; |
| Defendants' Response to Plaintiff's Statement of Material Facts, | dated February 25, 2015; |
| Notice of Cross Motion, | dated February 25, 2015; |
| Memorandum of Law in Support of Defendant CNE Lights Out, Inc.'s Cross Motion, | dated February 25 2015; |
| Memorandum of Law in Opposition to the Cross Motion, | dated March 3, 2015; |
| Affirmation of James J. Barriere, Esq., | dated March 3, 2015; |
| Affirmation of Leah Threatte Bojnowski, Esq., | dated March 5, 2015, with attached Exhibits A–B; |
| Defendant CNE Lights Out, Inc.'s Statement of Material Facts, dated February 25, 2015; | |
| Plaintiff's Response to Defendant CNE Lights Out, Inc.'s Statement of Material Facts, | dated March 3, 2015; and |
| Defendant CNE Lights Out, Inc.'s Reply in Support of Cross Motion, | dated March 6, 2015. |