Opinion
April 15, 1985
Appeal from the Supreme Court, Nassau County (Christ, J., Levitt, J.).
Order modified, by adding thereto the following sentence: "The denial of this motion is without prejudice to renewal upon proper papers." As so modified, order affirmed, without costs or disbursements.
Upon a prior appeal on the instant matter, we affirmed Special Term's determination that defendants were required to pay for the installation of a traffic light on a county road at the intersection of Shelter Rock Road and Acorn Ponds Drive in the plaintiff village ( Incorporated Vil. of North Hills v. Longpond Investors, 98 A.D.2d 995), pursuant to the following condition on the final site plan approved by plaintiff village: "Note: If and when a Traffic Signal is warranted as determined by the Traffic Engineering Division of Nassau County, it will be installed by an approved Nassau County Signal Contractor according to Nassau County Specifications at a cost borne by the abutting property owner".
In fashioning relief, Special Term had directed defendants to either install the traffic signal, pursuant to the aforesaid condition, or in the alternative, pay $75,000.
However, the $75,000 sum represented plaintiff village's estimate of the cost of the installation of the traffic signal, and was not a sum representing a liquidated damage claim. Thus, if the installation was achieved at no cost to plaintiff village, it was not entitled to the sum of $75,000.
In light of the undisputed fact that the installation has now been completed by a third party, Special Term properly denied plaintiff village's motion for entry of a money judgment absent proof that plaintiff village was required to reimburse any expenses the third party incurred with respect to the installation of the traffic light. Such denial, however, should be without prejudice to renewal of the motion upon proper papers. Mangano, J.P., Brown, Niehoff and Lawrence, JJ., concur.