Bubonia Holding Corp. v. Jeckel

• Decision Date: 07 January 1993
• Docket Number: No. 1,No. 2,1,2
• Citation: 592 N.Y.S.2d 499,189 A.D.2d 957
• Parties: BUBONIA HOLDING CORPORATION, Doing Business as Bubonia Brothers Blacktop, Plaintiff, v. Ronald N. JECKEL, Respondent, et al., Defendants, and William M. Larned and Sons Inc., Appellant. (Action) WILLIAM M. LARNED AND SONS INC., Appellant, v. Ronald N. JECKEL, Respondent, et al., Defendant. (Action)
• Court: New York Supreme Court — Appellate Division

Page 499

592 N.Y.S.2d 499

189 A.D.2d 957

BUBONIA HOLDING CORPORATION, Doing Business as Bubonia

Brothers Blacktop, Plaintiff, v. Ronald N. JECKEL, Respondent, et al., Defendants, and William M. Larned and Sons Inc., Appellant. (Action No. 1.)

WILLIAM M. LARNED AND SONS INC., Appellant, v. Ronald N. JECKEL, Respondent, et al., Defendant. (Action No. 2.)

Supreme Court, Appellate Division,

Third Department.

Jan. 7, 1993.

Wayne P. Smith, Schenectady, for appellant.

Bartlett, Pontiff, Stewart, Rhodes and Judge, P.C. (Mark E. Cerasano, of counsel), Glens Falls, for respondent.

Before WEISS, P.J., and LEVINE, CREW, MAHONEY and HARVEY, JJ.

MAHONEY, Justice.

Appeal from an order of the Supreme Court (White, J.), entered July 22, 1991 in Schenectady County, which, inter alia, granted defendant Ronald N. Jeckel's cross motion for summary judgment dismissing the complaint in action No. 2.

In September 1987, defendant Ronald N. Jeckel (hereinafter defendant) entered into a project development agreement with Metcalf and Associates Inc. (hereinafter the project manager) to research and design a commercial building to house an Acura-Honda automobile dealership which was to be constructed on defendant's property along Route 5 in the Town of Niskayuna, Schenectady County. Following completion of the design phase, defendant entered into a contract with defendant Metcalf Development Company Inc. (hereinafter Metcalf) to perform site and utility work incident to the construction (hereinafter the site and utility contract). Several months thereafter, Ron Bowman, an employee of Metcalf, entered into an oral agreement with plaintiff William M. Larned and Sons Inc. (hereinafter plaintiff) to supply sand and gravel to the site. When Metcalf failed to make full payment for the materials delivered, plaintiff commenced an action against Metcalf and defendant sounding in breach of contract. ¹ Following joinder of issue and the conducting of some depositions, plaintiff moved, inter alia, for summary judgment against defendant prompting the latter to cross-move for the same relief against plaintiff. Supreme Court granted defendant's cross motion, concluding that plaintiff's agreement was solely with Metcalf and there was no contractual privity between plaintiff and defendant. Plaintiff appeals.

We affirm. It is well established that a subcontractor may not assert a contractual claim against an owner with whom it is not in privity (see, e.g., Perma Pave Contr. Corp. v. Paerdegat Boat & Racquet Club, 156 A.D.2d 550, 551, 549 N.Y.S.2d 57; Eastern States Elec. Contrs. v. Crow Constr. Co., 153 A.D.2d 522, 523, 544 N.Y.S.2d 600). In our view the evidence presented by plaintiff fails to raise a triable issue of fact on the subject of privity. It is uncontroverted that plaintiff's sand and gravel agreement was solely with Metcalf. Acting on behalf of that entity, Bowman solicited plaintiff's services, plaintiff sent its price quotations directly to him, made delivery arrangements through him, addressed all later billings and other communications to Metcalf's home office and, to the extent plaintiff was paid, payment was made directly by Metcalf. There was absolutely no contact with defendant and, by all accounts, he had no knowledge of this agreement or the terms thereof until so advised by plaintiff after payment difficulties developed. In this regard, it is...