Heydt Contracting Corp. v. Tishman Const. Corp. of New York

• Decision Date: 12 July 1990
• Citation: 163 A.D.2d 196,558 N.Y.S.2d 47
• Parties: HEYDT CONTRACTING CORPORATION, Plaintiff-Respondent, v. TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, Defendant-Respondent-Appellant, and Seven World Trade Company, etc., et al., Defendants-Appellants-Respondents, and The Home Indemnity Company, et al., Defendants-Respondents, and American Home Assurance Company, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 47

558 N.Y.S.2d 47

163 A.D.2d 196

HEYDT CONTRACTING CORPORATION, Plaintiff-Respondent, v. TISHMAN CONSTRUCTION CORPORATION OF NEW YORK,

Defendant-Respondent-Appellant,

and

Seven World Trade Company, etc., et al.,

Defendants-Appellants-Respondents,

and

The Home Indemnity Company, et al., Defendants-Respondents,

and

American Home Assurance Company, Defendant.

Supreme Court, Appellate Division,

First Department.

July 12, 1990.

D.S. Perlman, for plaintiff-respondent.

D.J. Carbone, for defendant-respondent-appellant.

M.W. Scherer, for defendants-appellants-respondents.

M.S. Cohen, for defendants-respondents.

Before KUPFERMAN, J.P., and ROSS, ELLERIN, WALLACH and SMITH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (William J. Davis, J.), entered November 20, 1989, inter alia, denying the motions of defendants Seven World Trade Company, Silverstein Development Corporation and Silverstein Properties, Inc. and cross-motions of defendant Tishman Construction Corporation of New York, for summary judgment dismissing the first and second causes of action of the complaint as against them in the action entitled Heydt Contracting Corporation v. Tishman Construction Corporation of New York, et al., and granting plaintiff's motion, pursuant to CPLR 602, to consolidate that action with another action, entitled Heydt Contracting Corporation v. American Home Assurance Company, et al., unanimously dismissed as superseded by the resettled order entered February 1, 1990.

Resettled order of said court, entered February 1, 1990, denying and granting the same relief as the prior order, and amending the caption of the consolidated action, unanimously modified, to the extent of reversing that portion which granted plaintiff's motion for consolidation and severing the actions, and otherwise affirmed, without costs.

Plaintiff commenced the first action against defendant American Home Assurance Company ("American Home") and others to recover damages to its construction hoist occasioned by a fire which occurred on June 25, 1986 at 7 World Trade Center, New York County, a construction site. This court granted summary judgment dismissing the complaint as to American Home on plaintiff's claim for payment under an insurance policy. Heydt Contracting Corp. v. American Home Assurance Co., 146 A.D.2d 497, 536 N.Y.S.2d 770 (1st Dept.1989). In that action, plaintiff also alleged that defendants Seven World Trade Company ("Seven World Trade") and Tishman Construction Corporation of New York ("Tishman"), the owner and construction manager at the site, negligently caused the fire which damaged plaintiff's hoist. It further alleged that the Home Indemnity Company had failed to pay plaintiff's claim, pursuant to a separate policy insurance.

Plaintiff commenced a second action against defendants Seven World and Tishman sounding in contract. Plaintiff alleged that, subsequent to the fire, defendant's representatives orally agreed to reimburse plaintiff for the cost of repairing or replacing the damaged hoist. It sought damages based on the oral agreement, and, in the event no such agreement was found, recovery in quantum meruit.

Defendants moved in this second action for summary judgment on the ground that the alleged oral agreement was barred by provisions of a written contract providing that plaintiff bear the risk of loss...