Opinion
2014-06-20
RESETARITS CONSTRUCTION CORPORATION, Plaintiff–Respondent, v. Elizabeth Pierce OLMSTED, M.D. Center for the Visually Impaired, Defendant–Appellant, and Epo–Stovroff Housing Development Fund Corp., Defendant. Elizabeth Pierce Olmsted, M.D. Center for the Visually Impaired and Epo Stovroff Housing Development Fund Corp., Third–Party Plaintiffs, v. Philadelphia Indemnity Insurance Company, Third–Party Defendant. (Appeal No. 2.).
Jaeckle Fleischmann & Mugel, LLP, Buffalo (Beverly S. Braun of Counsel), for Defendant–Appellant. Lipsitz Green Scime Cambria LLP, Buffalo (Andrew O. Miller of Counsel), for Plaintiff–Respondent.
Jaeckle Fleischmann & Mugel, LLP, Buffalo (Beverly S. Braun of Counsel), for Defendant–Appellant. Lipsitz Green Scime Cambria LLP, Buffalo (Andrew O. Miller of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking damages for, inter alia, breach of contract based on the alleged failure of defendant Elizabeth Pierce Olmsted, M.D. Center for the Visually Impaired (Olmsted) to pay for work performed by plaintiff pursuant to a construction contract. Plaintiff moved for, inter alia, summary judgment on its breach of contract cause of action, and defendants cross-moved for an order compelling additional discovery pursuant to CPLR 3212(f) and CPLR 3124. Supreme Court granted that part of plaintiff's motion seeking summary judgment on the breach of contract cause of action and denied “as moot” all other requests for relief, and this appeal by Olmsted ensued. We affirm.
“It is well settled that the elements of a breach of contract cause of action are ‘the existence of a contract, the plaintiff's performance under the contract, the defendant's breach of that contract, and resulting damages' ” ( Niagara Foods, Inc. v. Ferguson Elec. Serv. Co., Inc., 111 A.D.3d 1374, 1376, 975 N.Y.S.2d 280,lv. denied22 N.Y.3d 864, 2014 WL 1243559). “ ‘[W]hile the existence of a contract is a question of fact, the question of whether a certain or undisputed state of facts establishes a contract is one of law for the courts' ” (Gui's Lbr. & Home Ctr., Inc. v. Mader Constr. Co., Inc., 13 A.D.3d 1096, 1097, 787 N.Y.S.2d 555,lv. dismissed5 N.Y.3d 842, 805 N.Y.S.2d 544, 839 N.E.2d 897;see Brown Bros. Elec. Contrs. v. Beam Constr. Corp., 41 N.Y.2d 397, 400, 393 N.Y.S.2d 350, 361 N.E.2d 999). “To establish the existence of an enforceable agreement, a plaintiff must establish an offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound (22 N.Y. Jur. 2d, Contracts § 9). That meeting of the minds must include agreement on all essential terms ( id. § 31)” ( Kowalchuk v. Stroup, 61 A.D.3d 118, 121, 873 N.Y.S.2d 43;see Matter of Express Indus. & Term. Corp. v. New York State Dept. of Transp., 93 N.Y.2d 584, 589, 693 N.Y.S.2d 857, 715 N.E.2d 1050,rearg. denied93 N.Y.2d 1042, 697 N.Y.S.2d 571, 719 N.E.2d 932). Here, we conclude that the court properly granted that part of plaintiff's motion for summary judgment on the breach of contract cause of action inasmuch as plaintiff met its initial burden on the motion ( see generally Minelli Constr. Co., Inc. v. Volmar Constr., Inc., 82 A.D.3d 720, 721, 917 N.Y.S.2d 687;Hesse Constr., LLC v. Fisher, 61 A.D.3d 1143, 1144, 876 N.Y.S.2d 251;Gui's Lbr. & Home Ctr., Inc., 13 A.D.3d at 1097, 787 N.Y.S.2d 555), and defendants failed to raise an issue of fact in opposition thereto ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). We further conclude that the court properly rejected defendants' contention that plaintiff's motion was premature because further discovery was necessary and thus properly denied the cross motion seeking that further discovery. In opposing a summary judgment motion as premature pursuant to CPLR 3212(f), “ ‘the opposing party must make an evidentiary showing supporting [the conclusion that facts essential to justify opposition may exist but cannot then be stated, and] mere speculation or conjecture [is] insufficient’ ” ( Preferred Capital v. PBK, Inc., 309 A.D.2d 1168, 1169, 765 N.Y.S.2d 405;see Newman v. Regent Contr. Corp., 31 A.D.3d 1133, 1134–1135, 818 N.Y.S.2d 886). The opposing party must show that the discovery sought would produce evidence sufficient to defeat the motion ( see Dunn v. 726 Main & Pine, 255 A.D.2d 981, 982, 680 N.Y.S.2d 344), and that “ ‘facts essential to oppose the motion were in [the movant's] exclusive knowledge and possession and could be obtained by discovery’ ” ( Wright v. Shapiro, 16 A.D.3d 1042, 1043, 791 N.Y.S.2d 799;see Croman v. County of Oneida, 32 A.D.3d 1186, 1187, 821 N.Y.S.2d 343). Defendants failed to make the requisite showing here ( see generally Welch Foods, Inc. v. Wilson, 277 A.D.2d 882, 883, 716 N.Y.S.2d 243).
It is hereby ORDERED that the amended interim judgment so appealed from is unanimously affirmed without costs.