Summary
denying summary judgment where question of fact remained based on ambiguity in contract provision relating to the amount of asbestos abatement work that was to be performed for the school district
Summary of this case from Rondout Valley Central School v. Coneco Corp.Opinion
January 31, 1992
Appeal from the Supreme Court, Oneida County, Shaheen, J.
Present — Callahan, J.P., Doerr, Green, Balio and Lawton, JJ.
Order unanimously modified on the law and as modified affirmed with costs to plaintiff, in accordance with the following Memorandum: Supreme Court properly denied plaintiff's motion for partial summary judgment on its claim for progress payments. It is undisputed that the architects certified that the work had been completed and payment was due pursuant to article 6 of the contract. Receipt of the architects' final certificate does not foreclose the defendant, however, from asserting claims against the contractor (see, Board of Educ. v. Barbaresi Son, 25 A.D.2d 855, 856). Article 21 of the supplementary general provisions of the contract supersedes the general provisions of the contract providing for final payment upon issuance of the architects' final certificate.
There is a triable issue of fact which precludes plaintiff's claim for partial summary judgment on its claim for additional work (see, Balport Constr. Co. v. New York Tel. Co., 111 A.D.2d 360). The contract provisions with respect to the amount of work to be performed under Alternate #2, which provided for the abatement of asbestos in the dirt floor located in the crawlspace under the school building, are ambiguous. Alternate #2 of the contract appears to require plaintiff to clean 22,867 square feet of dirt floor. Addendum 2 of the contract, however, limits the dirt floor square footage under this alternative to a maximum of 5,748 square feet. Where, as here, the contract is ambiguous and subject to different interpretations and the intent of the parties depends upon a choice between reasonable inferences to be drawn from extrinsic evidence, interpretation of the contract must be determined by the trier of fact (see, Amusement Business Underwriters v. American Intl. Group, 66 N.Y.2d 878, 880-881; River Park Assocs. v. Meyerbank Elec. Co., 116 A.D.2d 709, 710.
Supreme Court erred, however, in denying plaintiff's motion to dismiss defendant's counterclaims based in negligence. Defendant's first, third and fifth counterclaims allege that plaintiff "carelessly, negligently and improperly performed under the agreement". A simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated (Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 389). Merely alleging a breach of a duty by employing language familiar to tort law, does not, without more, transform a simple breach of contract into a tort claim (Brum v. City of Niagara Falls, 145 A.D.2d 928, 929, lv denied 74 N.Y.2d 608). Defendant has not alleged the violation of a legal duty independent of the contract. Defendant's remaining counterclaims based upon alleged breach of contract should also have been dismissed based upon defendant's failure to comply with the condition precedent of written notice as required by paragraph 3.4.1 of the general conditions of the contract (see, Stage v. Village of Owego, 48 A.D.2d 985, 986, affd 39 N.Y.2d 1017).