Opinion
# 2017-018-828 Claim No. 122824 Motion No. M-88781
08-29-2017
NEW YORK STATE ELECTRIC & GAS CORPORATION v. STATE OF NEW YORK
BOND, SCHOENECK & KING, PLLC By: Mary P. Moore, Esquire Jeffrey R. Clark, Esquire Franz M. Wright, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Aaron J. Marcus, Esquire Assistant Attorney General
Synopsis
Defendant's motion for summary judgment is GRANTED solely to the extent that the cause of action alleging breach of an implied contract is DISMISSED and the motion is otherwise DENIED.
Case information
| UID: | 2017-018-828 |
| Claimant(s): | NEW YORK STATE ELECTRIC & GAS CORPORATION |
| Claimant short name: | NYSEG |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122824 |
| Motion number(s): | M-88781 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | BOND, SCHOENECK & KING, PLLC By: Mary P. Moore, Esquire Jeffrey R. Clark, Esquire Franz M. Wright, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Aaron J. Marcus, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 29, 2017 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed this claim to recover damages for the cost of relocating one of its utility structures in connection with a Department of Transportation (DOT) construction project in the Town of Vestal. The claim contains causes of action alleging negligence, breach of contract, and breach of implied contract. Defendant, State of New York, answered and asserted several affirmative defenses. The parties conducted some discovery. Thereafter, Claimant simultaneously moved both to amend the claim to include additional causes of action in negligent misrepresentation and promissory estoppel, and for partial summary judgment on these causes of action as well as the cause of action for negligence (Motion No. M-87589). The Court of Claims (Collins, J.) granted the motion to amend, but found that questions of fact existed with respect to all three causes of action and denied partial summary judgment (New York State Elec. & Gas Corp., v State of New York, UID No. 2016-015-126 [Ct Cl, Collins, J., Apr. 8, 2016]). Claimant then served and filed an amended claim. In lieu of answering the amended claim, Defendant moved, pursuant to CPLR 3211 (a) (7), to dismiss the claim in its entirety for failure to state a cause of action. Claimant opposed the motion. The Court of Claims (Schaewe, J.), by letter order dated December 12, 2016, adjourned the motion and converted it into one for summary judgment to allow the parties to submit evidentiary material. Both parties have since provided further documentary evidence as well as additional arguments. The claim and this motion were then transferred to this Court.
The Court will initially set forth the facts as described in the submissions to establish the procedural history of this claim before discussing the merits of the motion. DOT approved a construction project to replace the State Route 201 Bridge over Old Vestal Road located in the Town of Vestal, Broome County (the Project). Claimant is the owner of a 34.5 kV electric transmission line, known as Line 441, a portion of which is located within the highway boundaries of Old Vestal Road. In order to proceed with the Project, DOT directed Claimant to relocate certain poles in Line 441. As is pertinent to this claim, Claimant made the determination to replace the two existing poles it was required to relocate with three new poles, which were delineated as New Structures 20, 21, and 21A.
Claimant alleges that on February 2, 2011, Michael Rossiter, its Lead Analyst in Transmission Design, showed Claimant's relocation plan pertaining to New Structures 20, 21 and 21A (the Relocation Plan) to Marvin Fetterman, DOT's Region 9 Utility Engineer. Claimant also asserts that on February 9, 2011, the Relocation Plan was discussed at a utilities meeting which was attended by Fetterman and other DOT personnel as well as representatives of Bothar Construction (Bothar), DOT's contractor. Claimant states that at this meeting Rossiter informed Fetterman and Bothar that "it was critical that the soil bank where New Structure 21A was to be located not be excavated or otherwise altered," and also asked whether they "anticipated that there would be any modification to the existing topography or surface grade of the soil bank where New Structure 21A was to be located." Claimant alleges that both DOT and Bothar "assured Claimant that there would not be any modifications to the topography or surface grade of the soil bank where New Structure 21A was to be located." Claimant states that the Relocation Plan was modified by slightly moving the location of New Structure 21A so that it did not stand directly over a drainage line to be installed. After this modification, the plan was approved (the Approved Plan) by both Fetterman and Bothar on March 4, 2011. Claimant asserts that it "constructed New Structure 21A in reliance on Fetterman's and Bothar's representations that there would not be any modifications to the soil bank where New Structure 21A was to be located."
Amended Claim, ¶ 18.
Id., ¶ 19.
Id., ¶ 20.
Id., ¶ 24.
Claimant notes that some time after the new poles were installed, soil from the earthen bank where New Structure 21A was located was excavated and removed. Claimant determined that the structural support of New Structure 21A was substantially reduced and requested that the soil bank be replaced or alternatively that a retaining wall be installed. Defendant rejected both suggestions citing visibility concerns. In order to ensure the structural integrity of the pole, Claimant reset the pole and supporting guy anchors at a greater depth and incurred additional costs. Claimant seeks to recover the additional costs associated with the second setting of New Structure 21A alleged to be in the amount of $45,999.43.
It is undisputed that Defendant has the power to require relocation of utility poles "whenever the public health, safety or convenience requires the change to be made" at the owners' expense (Matter of Consolidated Edison Co. of N.Y., v Lindsay, 24 NY2d 309, 316 [1969]; see Highway Law § 319 [2]; 17 NYCRR 131.11). The rationale for the rule is that:
"the [municipal entity] should not be required to recompense the company for the loss of a privilege which it obtained without paying [that entity] a penny for its use . . . Certainly the company has no vested property right to the use of any particular street but must assume the risk of having to relocate as part of its general right to use the streets" (Matter of Consolidated Edison, 24 NY2d at 318).
"Only when it is shown that a state or municipality's directive to relocate was issued arbitrarily or wantonly may expenses incurred as a consequence of the relocation be recovered" (New York State Elec. & Gas Corp., UID No. 2016-015-126 at 3, citing New York Tel. Co. v City of New York, 95 AD2d 282 [2d Dept 1983], affd 65 NY2d 681 [1985]; see also Trocom Constr. Corp. v Consolidated Edison Co. of N.Y., 7 AD3d 434 [1st Dept 2004]; City of New York v Consolidated Edison Co. of N.Y., 1 AD3d 282 [1st Dept 2003]).
"This standard, as opposed to one of ordinary negligence, would . . . more closely be in keeping with the long-standing rule that '[l]awfully authorized planning by governmental bodies has a unique character deserving of special treatment as regards the extent to which it may give rise to tort liability' " (New York Tel. Co., 95 AD2d at 286-287, quoting Weiss v Fote, 7 NY2d 579 [1960]).
Accordingly, Claimant can recover on a negligence cause of action only if the directive to relocate was found to be issued arbitrarily or wantonly.
Initially, to the extent that Defendant's present motion for summary judgment seeks dismissal of the negligence, negligent misrepresentation, and promissory estoppel causes of action, it is denied. As Claimant correctly notes, Defendant is barred by the law of the case doctrine from relitigating these issues. "The law of the case doctrine declares that a court of coordinate jurisdiction should not disregard an earlier decision on the same question in the same case" (State of New York v Barclays Bank of N.Y., 151 AD2d 19, 21 [3d Dept 1989], affd 76 NY2d 533 [1990]; see also People v Evans, 94 NY2d 499 [2000]). Defendant contends that the law of the case doctrine is not applicable because Judge Collins determined that Claimant had not met its burden of proof on the previous summary judgment motion. This contention is completely without merit. With respect to the cause of action for negligence, Judge Collins specifically found that the "disputed fact issues regarding [DOT's] awareness of the need for the embankment to support New Structure 21A and [DOT's] purported de minimis role in planning its installation" prevented a finding that DOT's conduct in approving the location of New Structure 21A was arbitrary or wanton as a matter of law (New York State Elec. & Gas Corp., UID No. 2016-015-126 at 4). Accordingly, Claimant's motion for summary judgment for this cause of action was denied (Id.).
Reply Affirmation of AAG Aaron J. Marcus, dated Feb. 15, 2017, in Support of Motion, ¶ 5.
Judge Collins further found that "questions of fact exist[ed] regarding whether or not the alleged misrepresentations were made or, if they were, whether [Claimant's] alleged reliance on the oral representations was reasonable given the alleged depiction of the excavation in the plans which were provided to [Claimant]," resulting in denial of summary judgment with respect to the negligent misrepresentation cause of action. Judge Collins noted that "[t]he same reasons requiring denial of [Claimant's] motion for partial summary judgment on its negligent misrepresentation cause of action require[d] denial of its partial summary judgment motion on its cause of action for promissory estoppel" (Id. at 9).
New York State Elec. & Gas Corp., UID No. 2016-015-126 at 8. Judge Collins also noted that Claimant's denial that it received construction plans which showed excavation also created a question of fact for resolution at trial (Id., at 8-9).
Claimant's previous motion for partial summary judgment was clearly denied on the basis that several issues of fact existed. Given the lack of any new evidence presented with this motion, Defendant cannot establish the lack of factual issues with respect to the causes of action for negligence, negligent misrepresentation, and promissory estoppel. Accordingly, Defendant's motion for summary judgment with respect to these three causes of action is denied.
Defendant's additional assertion that the law of the case doctrine is not applicable because the Court "did not address the provisions of the [Utility] Work Agreement as they relate[d] to the merits of the Amended Claim," is similarly without merit (Reply Affirmation of AAG Aaron Marcus, dated Feb. 15, 2017, in Support of Motion, ¶ 4). While the Court may not have explicitly discussed the merits of the Amended Claim in conjunction with the Utility Work Agreement, Defendant submitted a copy of said agreement in opposition to Claimant's motion to amend and for partial summary judgment as Exhibit B to the Affirmation of AAG Aaron J. Marcus dated Dec. 7, 2015 (see Affirmation of Mary P. Moore, Esq., dated Feb. 9, 2017, in Opposition to Motion, Exhibit B1 at 10). Accordingly, the existence of the Utility Work Agreement and its contents was considered by Judge Collins in rendering his Decision and Order dated April 8, 2016 (see New York State Elec. & Gas Corp., UID No. 2016-015-126 at 10).
The Court will now address Defendant's motion for summary judgment dismissing the causes of action for breach of contract and breach of implied contract. Defendant, as the proponent of a summary judgment motion, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853).
Defendant argues that the parties entered into a written Utility Work Agreement (the Agreement) which incorporates all construction plan sheets associated with the Project and governs the work performed. Defendant asserts that rather than alleging a breach of the Agreement, Claimant is attempting to vary the terms of the Agreement with extrinsic evidence consisting of the Approved Plan. Defendant also argues that because of the existence of the Agreement between the parties, Claimant's cause of action for an implied contract cannot survive as a matter of law.
Conversely, Claimant asserts that it developed a relocation plan based upon the only construction plans DOT provided - which did not show any significant excavation in the area proposed for the location of New Structure 21A - and in reliance on DOT's and Bothar's representations that no excavation was going to take place in that area. Claimant contends that its construction of New Structure 21A in conformance with the Approved Plan created a contract which Defendant breached when the soil surrounding the structure was excavated. Claimant alternately asserts that because Defendant approved the relocation plan and repeatedly confirmed that no modifications would be made to the surface grade, an implied in fact contract was created.
In support of this motion, Defendant has provided, among other things, affidavits from several DOT employees who were involved with the project. John Baylor, the Engineer in Charge for the Project, states that he was present at the February 9, 2011 utilities meeting which was held to coordinate efforts between Bothar and the utility companies, including Claimant, who were required to relocate their respective utilities. Baylor notes that at the meeting Bothar informed the utility companies of its schedule of operations in order for the companies to plan and schedule their individual relocation projects so as to not interfere with the entire construction project. Baylor denies having discussed the issue of excavation in the area of New Structure 21A with Rossiter at the meeting or at any time prior to the installation of the structure. Baylor states that the excavation was set forth in various sheets in the Project construction plans, specifically Sheet Number 214 (Infield and Infiltration Basis Grading Plan), which was also referenced in Sheet Numbers 18 and 23 (Typical Sections for Ramp F and Vestal Road, respectively). Baylor notes that at the meeting, the parties were only concerned with "whether placement of the relocated utility poles would interfere with the Project." He also states that DOT's review of the Relocation Plan "was limited to whether the proposed location would have interfered with any other aspects of the project [and] did not engage in how the installation was to be constructed." He further opined that Claimant, which had been provided with a complete set of construction plans, would have been aware of the planned excavation.
The Court notes that all of the affidavits were executed in December 2015 and submitted in opposition to Claimant's previous motion for partial summary judgment.
Affidavit of John J. Baylor, sworn to Dec. 7, 2015 (Affirmation in support of Defendant's Motion for Summary Judgment, Exhibit L, ¶ 4).
Id., ¶ 6.
Kirk E. Boothroyd, DOT's Design Consultant Manager on the Project, indicates that the Project plans depicted the location of two poles (Station VR1+081.2) which needed to be relocated. He states that Claimant independently determined that the relocation of the two poles would require the installation of a third pole (New Structure 21A). Boothroyd was also present at the February 9, 2011 meeting, but has no recollection of discussing the issue of excavation in the area where New Structure 21A was going to be located. He does note that the project plans, specifically Sheet Numbers 191 (Landscaping Plan) and 214, show a substantial amount of excavation planned for the area. He further indicates that both Sheets show the exact elevation and grading in detail, in particular that there would be a 6½-foot difference in elevation of the area where New Structure 21A was to be located. Boothroyd also opines that Claimant should have been aware of the planned excavation and that it either misread or failed to read the Project plans when developing the Relocation Plan. Boothroyd states that DOT reviewed the Relocation Plan only to confirm that it did not interfere with the overall project. He notes that because the initial proposed placement of New Structure 21A would have interfered with underground drainage, it was moved slightly before the Relocation Plan was approved.
Marvin Fetterman, DOT Region 9 Utilities Engineer, also provided an affidavit. Fetterman states that he sent the Agreement to Claimant and noted in the cover sheet that a full set of plans had previously been forwarded through the DOT file management transfer system. He notes that his primary role in the Project was to facilitate coordination between Bothar and the utility companies so that the relocation occurred in a reasonable order and time frame. Fetterman denies any responsibility to provide technical engineering expertise or advice to the utility companies. He indicates that Rossiter showed him a sketch with proposed relocations of various poles, including New Structure 21A. Fetterman describes the sketch as a "rough drawing" and notes that it did not include a detailed rendering of a soil bank needed to support the structure and its guy anchors. Fetterman states that he reviewed the sketch only in a coordination role to confirm that the proposed relocations would not interfere with the Project. He also indicates that it would ultimately be up to Bothar to accept or reject the proposed pole relocations, and notes that Bothar found that the initial proposed location of New Structure 21A would have interfered with underground drainage so the pole was actually placed in a different spot than depicted on the sketch.
Affidavit of Marvin Fetterman, sworn to Dec. 7, 2015 (Affirmation in Support of Defendant's Motion for Summary Judgment, Exhibit N, ¶ 5).
Fetterman admits that at the time of the February 9, 2011 meeting he was unaware that there was to be any excavation in the area of New Structure 21A as he had not reviewed Sheet Numbers 214 and 191 which clearly show substantial excavation. Fetterman indicates that although he had a general knowledge of the Project, his responsibilities as Region 9 Utilities Engineer did not require that he review every sheet contained in the Project plans. He states that he did not have any discussion with Rossiter or any other representative of Claimant pertaining to how deep the structure needed to be or how much soil was needed around it. He emphasizes that his review was solely to determine that the planned location of New Structure 21A would not interfere with other aspects of the Project and that once that determination had been made, the placement was approved.
Richard Kotasek, DOT Construction Supervisor for the Project, states that he was present at the February 9, 2011 meeting, but has no recollection of any discussion pertaining to excavation in the area of New Structure 21A at that meeting or at any time prior to its installation. He also notes that the Project plans clearly show a substantial excavation in the area and opines that Claimant should have been aware of it, having received the plans in advance.
In support of this motion, Defendant has also provided an affidavit executed by Michael Rossiter which had previously been submitted in support of Claimant's motion to amend the claim and for summary judgment. Rossiter states that he reviewed plans which had been provided to Claimant and other utility companies by DOT. He specifically refers to Drawing No. GP-14 which allegedly does not show any grade change and Drawing No. PRO-03 which purportedly showed no more than a one foot difference in elevation between existing and finished grade. Rossiter explains that New Structure 21A was to include a dead-end pole which has wires coming into it from one direction and going out from it in another direction at a 75 degree angle. Rossiter notes that because the pole is subject to tremendous force, it needed to be stabilized by using down guys, which are wires that run from the top of the pole to a rod and anchor that are installed in the ground. The down guys transfer the force from the pole into the earth. Rossiter indicates that he determined that it would be necessary to replace two existing poles which needed to be relocated with three new structures. He states that he selected the location for New Structure 21A based upon Drawing Nos. GP-14 and PRO-03 which did not show any excavation of the existing soil bank. Rossiter notes that he presented a drawing which showed the proposed location of New Structure 21A to Marvin Fetterman on February 4, 2011. On that same day, Claimant staked out the location of New Structure 21A as well as the down guy anchors.
Rossiter states that he attended the February 9, 2011 utility meeting and provided copies of the drawing depicting the proposed location of New Structure 21A to DOT and Bothar representatives. Rossiter indicates that he discussed the location and told the representatives, including Fetterman, "that it was critical that the soil bank where New Structure 21A was to be located not be excavated or otherwise modified during construction of the Project [and] explained that the existing soil bank was critical to properly stabilize the structure." Rossiter states that he also specifically asked whether DOT or Bothar anticipated that the topography would change by more than one foot. Rossiter notes that both Fetterman and Bothar affirmed that no modifications would be made.
Affidavit of Michael Rossiter, sworn to Oct. 26, 2015 (Affirmation in Support of Defendant's Motion for Summary Judgment, Exhibit P, ¶ 25).
Rossiter explains that DOT surveyed the stakes a few weeks later and provided the survey to John Weaver, a senior technician with Delta Engineers, Architects, and Land Surveyors (Delta), the Project's designer. On February 22, 2011, Rossiter met with Scott Ellsworth, Bothar's Site Supervisor, who also indicated that the grade would not be changed by more than one foot. Rossiter states that on February 24, 2011, Fetterman provided him with a new drawing created by Delta that showed the location of New Structure 21A moved slightly so it would not interfere with a drainage line, and that the change in location did not change the necessity of the size and location of the soil bank to support New Structure 21A. Rossiter indicates that Claimant constructed New Structure 21A in the location approved by both DOT and Bothar and in reliance on their representations that there would not be any excavations or modifications of the soil bank.
Rossiter notes that Delta created another drawing on February 25, 2011 to indicate that a high mast light pole had been shifted 20 feet away from Line 441, however, the location of New Structure 21A was not changed any further.
Rossiter notes that on June 6, 2011, he received a call from Ellsworth requesting that he inspect New Structure 21A because excavation had taken place close to the structure. Significant quantities of soil had been removed, exposing one of the down guy anchors and substantially reducing the structural support so Rossiter contacted Fetterman and requested that the bank be restored. On July 21, 2011, Rossiter met with Fetterman and Bothar at the site to review the soil bank conditions and discuss options, including erecting a retaining wall. Fetterman later advised Rossiter that the soil bank could not be restored and a retaining wall could not be built because either of those options would negatively impact visibility. Rossiter notes that on August 1, 2011, Claimant was directed to re-set New Structure 21A and its down guy anchors at a deeper depth to accommodate the 6½ feet of soil which had been excavated.
Defendant has included a copy of the Agreement which provides that the Project:
"necessitates the adjustment of utility facilities . . . [and that] the owner [Claimant] agrees . . . that this agreement shall apply to the accommodation of these utility facilities. Any adjustment of said facilities will be accomplished under the terms of this agreement, in accordance with the Rules and Regulations Governing the Accommodation of Utilities within the State Highway Right-of-Way, in compliance with the attached Special Note Coordination with the Utility Schedule, and in accordance with the contract plans, specifications, proposal, amendment(s) or change order(s)."
Affirmation of AAG Aaron J. Marcus, in Support of Motion, dated Jan. 24, 2017, Exhibit B at 1.
The Agreement further provides that the:
"facilities . . . in conflict with proposed construction are to be relocated as shown/detailed on the Utility Disposition Table, General Plans and the Utility/Drainage Plans. . . . transmission relocations should be limited to three poles with attached drawing DRUP-14 showing relocation points for two of the transmission poles. The third transmission pole is just off the left side of the page on DRUP-19 and should be relocated slightly north to maintain symmetry of the line."
Id.
The Agreement indicates that the facilities to be adjusted are subject to Highway Law section 52 and the cost of the relocation is the sole responsibility of Claimant. The physical adjustment or design engineering was also to be performed by Claimant. The Agreement further provides that the Contract Documents including all Plan Sheets, "in particular Utility Disposition Tables UDT-01 to UDT-03 (attached), General Plans GP-01 to GP-22, High Mast Lighting UTT-01 to UTT-02, One line Diagram OLD-01 to OLD-02, Drainage & Utility Plans DRUP-01 to DRUP-22, Traffic Signal Plans TSP-1 to TSP-8" as well as the Special Note on Coordination with the Utility Schedule are incorporated by reference. The Agreement was transmitted to Claimant by Fetterman's cover letter dated October 7, 2010 and addressed to Paul Blakelock. The cover letter indicates that in addition to the Agreement, "the Utility Disposition Table and pertinent plan sheets along with one set of General Plan Sheets, Utility/Drainage Sheet, Lighting Plans and Traffic Signal Plans" were included.
Id. at 4.
Affirmation of AAG Aaron J. Marcus, dated Jan. 24, 2017, in Support of Motion, Exhibit A at 1. The letter also notes that a full set of construction plans had been previously forwarded via the DOT file management transfer system.
In opposition to Defendant's motion, Claimant has submitted the complete record before the Court on its prior motion for summary judgment. In addition to the documentation submitted by Defendant in support of this motion, Claimant has included an additional affidavit of Michael Rossiter in which he denies having ever been provided with Plan Sheet Numbers 18, 23, 191 or 214. Because he did not have these plan sheets, Rossiter states that he had no notice that a 6½ foot excavation was planned for the location where New Structure 21A was installed. Claimant has also provided the affidavit of Paul Blakelock, a Distribution Engineer for Claimant. Blakelock states that he was involved with the relocation of the three poles because they impacted the delivery of electricity to end consumers. He denies receiving both Fetterman's cover letter dated October 7, 2010 and a full set of construction plans for the Project. He specifically denies having received copies of Plan Sheet Numbers 18, 23, 191, and 214.
Claimant has also included various email threads submitted in support of its previous motion for partial summary judgment. In particular, is an email on August 1, 2011 from Fetterman to Rossiter in which Fetterman "directs [Claimant] to relocate pole 21A as noted in [his] previous email dated July 22. . . . [He states that he] understand[s] that this request for relocation of newly place[d] pole 21A should not be required, based on the field utility meetings with the contractor and review of [Claimant's] survey stake location for pole 21A by various parties. However a mistake has occurred . . ."
Id., Exhibit S at 1.
The elements of a cause of action for breach of contract are the formation of a contract, performance by one party, failure to perform by another, and resulting damage (see Torok v Moore's Flatwork & Founds., LLC, 106 AD3d 1421, 1422 [3d Dept 2013]). In order to establish an enforceable agreement, a claimant must set forth an offer, acceptance, consideration, mutual assent and an intent to be bound (Resetarits Constr. Corp., v Elizabeth Pierce Olmstead, M.D. Center for the Visually Impaired, 118 AD3d 1454 [4th Dept 2014]). In this case and as Defendant correctly notes, the parties did execute the Agreement.
Defendant argues that Claimant cannot recover for a breach of contract because it is attempting to vary the terms of the Agreement by using extrinsic evidence, i.e., the Approved Plan. The Agreement, however, does not contain a provision requiring that any modifications be in writing (see General Obligations Law § 15-301 [1]) and, thus, the use of extrinsic evidence such as the Approved Plan and testimony concerning the representations to show a subsequent modification or clarification of the Agreement is appropriate (see generally Rose v Spa Realty Assoc., 42 NY2d 338, 343 [1977]; Mora v RGB, Inc., 17 AD3d 849, 852-853 [3d Dept 2005]; Elderlee v State of New York, UID No. 2013-015-419 [Ct Cl, Collins, J., May 10, 2013]). Accordingly, Defendant has not met its burden of establishing entitlement to judgment dismissing this cause of action for breach of contract as a matter of law (see e.g., Alvarez, 68 NY2d at 324).
Even if Defendant had met its burden, summary judgment dismissing the breach of contract cause of action would still be inappropriate. Notwithstanding that the Agreement incorporates all of the Project construction plan sheets by reference, it specifically provides that Claimant's facilities were "to be relocated as shown/detailed on the Utility Disposition Table, General Plans and the Utility/Drainage Plans," documents which Claimant received with a copy of the Agreement. However, these documents apparently do not depict any changes in elevation. Claimant denies having ever received a complete set of construction plans for the Project and specifically denies it received Sheet Numbers 18, 23, 191, and 214 which depict existing and modified elevations at the location of New Structure 21A. The Court finds that questions of fact exist as to whether Claimant was provided with all of the Project plans, whether Claimant was required to independently obtain them because they were incorporated into the Agreement, and whether Claimant's reliance on the Approved Plan and/or the representations by DOT and Bothar pertaining to the lack of excavation were reasonable. Accordingly, Defendant's motion for summary judgment dismissing the cause of action for breach of contract is denied.
Id., Exhibit B at 1.
Defendant asserts that in light of the existence of a written contract, Claimant's cause of action for an implied contract cannot survive as a matter of law. Conversely, Claimant contends that because Defendant approved the relocation plan and repeatedly confirmed that no modifications would be made to the surface grade, an implied in fact contract was created.
Defendant's alternative contention that an implied in fact contract would be barred by State Finance Law section 112 (2) is without merit. State Finance Law section 112 (2) provides in pertinent part that "[b]efore any contract made for or by any state agency, department, board, officer, commission, or institution . . . shall be executed or become effective, whenever such contract exceeds fifty thousand dollars in amount . . . it shall first be approved by the comptroller and filed in his or her office." Claimant seeks $45,999.43, the amount it alleges was expended in order to re-set New Structure 21A at the proper depth following excavation. Because the amount sought is less than $50,000, the implied in fact contract would not be subject to the requirements of State Finance Law section 112 (2).
It is well-settled that "[a] contract cannot be implied in fact . . . where there is an express contract covering the subject-matter involved . . . ." (A & S Welding & Boiler Repair, v Seigel, 93 AD2d 712, 712 [1st Dept 1983]; see also Miller v Schloss, 218 NY 400, 406 [1916]). As set forth previously herein, the relocation work was covered by the Agreement. Whether the Agreement was subsequently modified by the Approved Plan and/or representations will be resolved at trial. Nevertheless, the existence of the Agreement precludes any cause of action for an implied contract pertaining to the relocation work at issue. Accordingly, the breach of implied contract cause of action is DISMISSED.
Defendant's motion for summary judgment is GRANTED solely to the extent that the cause of action alleging breach of an implied contract is DISMISSED and the motion is otherwise DENIED.
Defendant has not yet interposed a Verified Answer to the Amended Claim filed April 29, 2016. A Stipulation to extend the time to answer until June 20, 2016 was executed by the parties, and thereafter Defendant filed a motion to dismiss which was converted to a summary judgment motion. Accordingly, Defendant shall have 20 days from the date of filing of this Decision and Order to file and serve a Verified Answer to the Amended Claim. Thereafter, the Court will notify the parties of a conference date to determine if this claim is ready to be scheduled for trial.
August 29, 2017
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affirmation of Aaron J. Marcus, Esquire, Assistant Attorney General, in support, with exhibits attached thereto, together with a Memorandum of Law. 3) Affirmation of Jeffrey R. Clark, Esquire, in opposition together with a Memorandum of Law. 4) Affirmation of Aaron J. Marcus, Esquire, Assistant Attorney General, in support, with exhibits attached thereto. 5) Reply Memorandum of Law in support by Aaron J. Marcus, Esquire, Assistant Attorney General. 6) Surreply Memorandum of Law in Opposition by Jeffrey R. Clark, Esquire and Franz M. Wright, Esquire. 7) Affirmation of Mary P. Moore, Esquire, in opposition, with exhibits attached thereto. 8) Reply Affirmation of Aaron J. Marcus, Esquire, Assistant Attorney General, in support. 9) Memorandum of Law in Support of Defendant's Motion for Summary Judgment by Aaron J. Marcus, Esquire, Assistant Attorney General. 10) Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment by Jeffrey Clark, Esquire and Mary P. Moore, Esquire.