Summary
holding Village liable under quantum meruit for use of County sewage facility where Village and County agreed on Village's use of facility but not on price
Summary of this case from U.S. v. Raymond Whitcomb Co.Opinion
August 14, 1995
Appeal from the Supreme Court, Nassau County (Murphy, J.).
Ordered that the order is affirmed; and it is further
Ordered the plaintiff is awarded one bill of costs.
The Supreme Court properly determined that the defendant the Incorporated Village of Roslyn (hereinafter the Village) ratified the joint municipal agreement it entered into with the plaintiff Nassau County (hereinafter the County) (see, Seif v. City of Long Beach, 286 N.Y. 382, 386-387; Albany City Natl. Bank v. City of Albany, 92 N.Y. 363, 365-366).
In the absence of any resolution by the Village's Board of Trustees concerning how the Village intended to pay for the cost of using the County sewage treatment facilities (see, Village Law § 5-520; see also, Local Finance Law § 15.00 [c] [3] [b]), the Supreme Court properly determined that the Village was liable under the theory of implied contract for damages in quantum meruit (see, Kramrath v. City of Albany, 127 N.Y. 575, 579-581; Gill, Korff Assoc. v. County of Onondaga, 152 A.D.2d 912; Vrooman v. Village of Middleville, 91 A.D.2d 833, 834-835; Suffolk County Water Auth. v. Board of Fire Commrs., 89 A.D.2d 849, affd 59 N.Y.2d 646; Northern Westchester Light. Co. v President of Vil. of Ossining, 219 App. Div. 531, 538).
The Village and the County each possessed the power to enter into the joint municipal agreement (see, e.g., N Y Const, art VIII, §§ 1, 2-a; General Municipal Law § 119-o; § 120; 1984 Opns St Comp, Nos. 84-63, 89-63; 24 Opns St Comp 873, No. 68-943; Nassau County Government Law §§ 1218, 1231; Village Law §§ 14-1400, 14-1436, 17-1718 [c]). Moreover, the joint municipal agreement was valid notwithstanding the fact that it did not contain a period of usefulness (see, N Y Const, art VIII, § 2; Local Finance Law § 11.00[a][4]; § 15.00 [c][2]), it did not contain a time limitation (see, Matter of Town of Highlands v. Weyant, 38 A.D.2d 256, 257), it did not set forth the total amount of the Village's indebtedness (compare, General Municipal Law § 119-o[a]), and the County did not ultimately issue bonds as it originally intended (see, Rice v Cayuga-Onondaga Healthcare Plan, 190 A.D.2d 330, 331-332).
The Supreme Court properly granted the County's motion for summary judgment in both actions notwithstanding the Village's allegations of fraud, as the alleged misrepresentations by the County about what would be done in the future were not actionable (see, Chimento Co. v. Banco Popular de Puerto Rico, 208 A.D.2d 385; Barrett v. Littles, 201 A.D.2d 444; see also, CPLR 3211 [c]; De La Poer v. Salomon Bros., 193 A.D.2d 568). The Village's contentions with respect to its remaining affirmative defenses are equally without merit.
In view of this determination, pursuant to the County's request we need not address the issues raised in the County's cross appeal concerning the liability of the remaining defendants.
By limiting their cross notice of appeal to the issue of whether the Supreme Court erred in denying the branch of their cross motion which was for summary judgment on the issue of liability in Action No. 1 against certain individuals and in granting the motion of Elias Spielman to dismiss the complaints insofar as asserted against him, the County has waived its right to appeal the denial of the branch of its cross motion which was for summary judgment on the issue of damages. In any event, the Supreme Court correctly held that questions of fact precluded an award of summary judgment to the County for the damages demanded in its complaints (see, Suffolk County Water Auth. v. Board of Fire Commrs., 89 A.D.2d 849, supra).
Finally, we note that while the Village's claims were not meritorious, it cannot be said that the Village engaged in frivolous conduct within the meaning of 22 NYCRR 130-1.1 (a) in pursuing its appeal so as to warrant the imposition of sanctions under that rule (see, Matter of Gerdts v. State of New York, 210 A.D.2d 645). Miller, J.P., Thompson, Friedmann and Florio, JJ., concur.