Inter-Power of New York, Inc. v. NIAGARA MOHAWK POWER CORPORATION

• Decision Date: 18 March 1999
• Citation: 686 N.Y.S.2d 911,259 A.D.2d 932
• Court: New York Supreme Court — Appellate Division
• Parties: INTER-POWER OF NEW YORK, INC., Appellant,<BR>v.<BR>NIAGARA MOHAWK POWER CORPORATION, Respondent.

259 A.D.2d 932

686 N.Y.S.2d 911

INTER-POWER OF NEW YORK, INC., Appellant,

v.NIAGARA MOHAWK POWER CORPORATION, Respondent.

Decided March 18, 1999.

Mercure, J. P., Peters, Spain and Carpinello, JJ., concur.

Crew III, J.

The instant appeal arises out of a power sales contract entered into between plaintiff and defendant in February 1988, pursuant to the terms of which defendant agreed to purchase power generated by a plant to be constructed by plaintiff in the Town of Halfmoon, Saratoga County.^[*] The contract called for the facility to be operational by December 31, 1993 and, insofar as is relevant to this appeal, required that at least 12 months prior to the initial operation of the facility, plaintiff provide defendant with satisfactory "written evidence" that a firm supply of fuel was available. The contract further provided that in the event plaintiff failed to fulfill this obligation, the parties' agreement would become "null and void without liability of any description, kind or nature what[so]ever by [defendant] to [plaintiff]".

In November 1992, defendant requested that plaintiff provide it with such written evidence in accordance with the contract. Although initially asserting that it was not required to provide a written commitment at that time due to the fact that the facility then was not projected to be operational until early 1996, plaintiff nonetheless forwarded to defendant a letter from a supplier indicating that an understanding regarding "all essential commercial terms and conditions of a long-term supply contract" had been reached. Defendant deemed such response to be insufficient and, by letter dated January 4, 1993, advised plaintiff that it considered their agreement to be "null and void by its own terms". Thereafter, by letter dated January 21, 1993, plaintiff informed defendant that it considered defendant's "unilateral attempt" to rewrite the underlying contract to be "nothing but a wrongful attempt to repudiate a valid, enforceable agreement", that it disagreed with defendant's position that the contract was "null and void" and that it intended "to pursue and enforce all available legal remedies".

Shortly thereafter, in March 1993, plaintiff commenced this action against, among others, defendant setting forth 14 causes of action sounding in, inter alia, breach of contract. Prior proceedings and appeals resulted in the dismissal of all but plaintiff's fourth cause of action for breach of contract (see, 213 AD2d 110; 208 AD2d 1073), wherein plaintiff alleged that defendant's January 4, 1993 letter constituted an anticipatory breach of the parties' agreement, "notwithstanding the fact that at all relevant times [plaintiff was] ready, willing and able to fulfill all of its obligations under the [a]greement". Following additional discovery, defendant again moved for dismissal of plaintiff's fourth cause of action, this time asserting that plaintiff had waived the alleged repudiation by continuing to treat the underlying contract as valid and, further, that plaintiff could not demonstrate that it was ready, willing and able to perform in accordance with the parties' agreement. Supreme Court granted defendant's motion and this appeal ensued.

Initially, we reject plaintiff's procedural challenges to defendant's third motion for summary judgment€”namely, that there was no new evidence to justify such motion and that defendant's "waiver" and "performance" arguments could and should have been raised on one of the prior motions. While it is true that multiple motions for summary judgment in the same action generally are looked upon with disfavor, more than one motion is permissible where the subsequent motion is based upon newly discovered evidence or the moving party can demonstrate other sufficient cause for granting the motion (see, Tuttle v McQuesten Co., 243 AD2d 930, 931; Detko v McDonald's Rests., 198 AD2d 208, 209, lv denied 83 NY2d 752; Schriptek Mktg. v Columbus McKinnon Corp., 187 AD2d 800, 801, lv denied 81 NY2d 704). Here, although relying upon the text of plaintiffs January 21, 1993 letter, defendant primarily bases the instant motion for summary judgment upon the June 1997 examination before trial testimony of Abraham Glezerman, plaintiffs designated corporate representative. As such testimony plainly was not available for use on the prior motions, the motion now before us was not improper.

Turning to the merits, plaintiff contends that Supreme Court erred in finding that it waived defendant's alleged repudiation of the underlying contract. Alternatively, plaintiff argues that if such waiver occurred, the record demonstrates that plaintiff withdrew its waiver and was ready, willing and able to perform in accordance with the parties' agreement. As our review of the record reveals that plaintiff's arguments are lacking in merit, we affirm Supreme Court's...