Comsewogue Union Free School District v. Allied-Trent Roofing Systems, Inc.

• Decision Date: 22 February 2005
• Docket Number: 2003-07034.,2004-01580.
• Citation: 2005 NY Slip Op 01308,790 N.Y.S.2d 220,15 A.D.3d 523
• Parties: COMSEWOGUE UNION FREE SCHOOL DISTRICT, Appellant, v. ALLIED-TRENT ROOFING SYSTEMS, INC., et al., Defendants, and MARANGOS CONSTRUCTION CORP. et al., Respondents. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

15 A.D.3d 523

790 N.Y.S.2d 220

2005 NY Slip Op 01308

COMSEWOGUE UNION FREE SCHOOL DISTRICT, Appellant, v. ALLIED-TRENT ROOFING SYSTEMS, INC., et al., Defendants, and MARANGOS CONSTRUCTION CORP. et al., Respondents. (And a Third-Party Action.)

2003-07034.

2004-01580.

Appellate Division of the Supreme Court of the State of New York, Second Department.

February 22, 2005.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals (1), as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Suffolk County (Oliver, J.), entered June 30, 2003, as granted those branches of the separate motions of the defendants Marangos Construction Corp. and Triple M Roofing which were for summary judgment dismissing the complaint insofar as asserted against them, and (2) from an order of the same court entered February 3, 2004, which denied its motion for leave to reargue and for leave to amend the complaint.

Ordered that the appeal from so much of the order entered February 3, 2004, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order entered June 30, 2003, is affirmed insofar as appealed from; and it is further,

Ordered that the order entered February 3, 2004, is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the respondents.

In 1989 the plaintiff Comsewogue Union Free School District (hereinafter the District) undertook a roof reconstruction project for five of its schools, hiring the respondents, Marangos Construction Corp. and Triple M Roofing Corp., to install the replacement roofs. After the roofs developed leaks and other problems, the District commenced this action in 1997 against the respondents and other defendants. The only cause of action asserted against the respondents was to recover damages for breach of contract, which, as the Supreme Court determined in granting the respondents' separate motions for summary judgment, was time-barred.

In opposition to the respondents' motions for summary judgment, the District contended that its submissions established an additional, unpleaded cause of action alleging breach of warranty which the Supreme Court was required to consider, citing Alvord & Swift v Muller Constr. Co. (46 NY2d 276, 280 [1978]) and its progeny. While modern practice permits a plaintiff to successfully oppose a motion for summary judgment by relying on an unpleaded cause of action which is supported by the plaintiff's submissions (id.; see Gold Connection Discount Jewelers v American Dist. Tel. Co., 212 AD2d 577, 578 [1995]; Ayala v V & O...