Mack-Cali Realty, L.P. v. Everfoam Insulation Sys., Inc.

• Decision Date: 03 June 2015
• Docket Number: 2013-04854, 2013-06994, 2015-02732
• Citation: 129 A.D.3d 676,2015 N.Y. Slip Op. 04615,12 N.Y.S.3d 106
• Parties: MACK–CALI REALTY, L.P., et al., appellants-respondents, v. EVERFOAM INSULATION SYSTEMS, INC., respondent-appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 676

12 N.Y.S.3d 106

2015 N.Y. Slip Op. 04615

MACK–CALI REALTY, L.P., et al., appellants-respondents

v.EVERFOAM INSULATION SYSTEMS, INC., respondent-appellant.

2013-04854, 2013-06994, 2015-02732

Supreme Court, Appellate Division, Second Department, New York.

June 3, 2015.

Wechsler & Cohen, LLP, New York, N.Y. (James F.X. Hiler and Mitchell S. Cohen of counsel), for appellants-respondents.

Joseph Hirsch Connors Miller & Bull, P.C., New York, N.Y. (Richard C. Imbrogno of counsel), for respondent-appellant.

L. PRISCILLA HALL, J.P., SANDRA L. SGROI, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.

Opinion

In an action to recover damages for breach of contract and negligence, the plaintiffs appeal from (1) a decision of the Supreme Court, Westchester County (O. Bellantoni, J.), dated March 25, 2013, made after a nonjury trial, (2) a judgment of the same court entered April 15, 2013, and (3) an amended judgment of the same court entered June 11, 2013, which, upon a decision and order (one paper) of the same court entered May 9, 2013, inter alia, denying those branches of their motion which were pursuant to CPLR 4404 (b) for judgment in their favor on the cause of action alleging breach of contract, for an award of prejudgment interest from April 1, 2008, and for an award of attorney's fees, and for leave to amend the pleadings to conform to the evidence adduced at trial, is in favor of them and against the defendant in the principal sum of only $555,732.20, and the defendant cross-appeals from the same judgment and amended judgment.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 509–510, 472 N.Y.S.2d 718 ); and it is further,ORDERED that the appeal and the cross appeal from the judgment are dismissed, as the judgment was superseded by the amended judgment; and it is further,

ORDERED that the amended judgment is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof which is in favor of the plaintiffs and against the defendant on the cause of action alleging negligence, and substituting therefor a provision which is in favor of the plaintiffs and against the defendant on the cause of action alleging breach of contract, and (2) by adding a provision thereto dismissing the cause of action alleging negligence; as so modified, the amended judgment is affirmed, those branches of the plaintiffs' motion which were pursuant to CPLR 4404(b) for judgment in their favor on the cause of action alleging breach of contract, for an award of prejudgment interest from April 1, 2008, and for an award of attorney's fees, and for leave to amend the pleadings to conform to the evidence adduced at trial are granted, the decision and order entered May 9, 2013, is modified accordingly, and the matter is remitted to the Supreme Court, Westchester County, to determine the amount of prejudgment interest and attorney's fees to be awarded to the plaintiffs, and for the entry of an appropriate second amended judgment thereafter; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The defendant installed spray foam insulation on the third and fourth floors of the plaintiffs' commercial building. The plaintiffs commenced this action against the defendant to recover damages for breach of contract and negligence, alleging that the defendant improperly installed the foam in some areas on the third floor, thereby causing a strong noxious odor in the third-floor space leased to Allstate Insurance Company. The Supreme Court awarded judgment in favor of the plaintiffs and against the defendant only with respect to the negligence cause of action.

The Supreme Court erred in determining that the “Quotation” listed as “Exhibit A” of the contract, which provided that the defendant would perform the installation of polyurethane spray foam “in strict accordance with the Manufacturers' specifications,” was not part of the contract. The contract specifically referenced and incorporated Exhibit A, and the parties stipulated that the Quotation was included as part of the contract (see Deitsch Textiles v. New York Prop. Ins. Underwriting Assn., 62 N.Y.2d 999, 1002, 479 N.Y.S.2d 487, 468 N.E.2d 669 ; Dental Health Assoc. v. Zangeneh, 80 A.D.3d 724, 724, 915 N.Y.S.2d 311 ). Furthermore, since the parties executed the contract, the parties' additional signatures were not needed on the Quotation (see Flores v. Lower East Side Serv. Ctr., Inc., 4 N.Y.3d 363, 369, 795 N.Y.S.2d 491, 828 N.E.2d 593 ; Furman v. Wells Fargo Home Mtge., Inc., 105 A.D.3d 807, 964 N.Y.S.2d 169 ).

Moreover, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to amend the pleadings to conform to the evidence adduced at trial. “Whether to permit a party to amend a pleading is generally a matter of discretion for the trial court and, on review, the Appellate Division” (Krichmar v. Krichmar, 42 N.Y.2d 858, 860, 397 N.Y.S.2d 775, 366 N.E.2d 863 ). Absent prejudice, courts are free, pursuant to CPLR 3025(c), to permit the amendment of pleadings, even after trial (see Kimso Apts., LLC v. Gandhi, 24 N.Y.3d 403, 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 ; Dittmar Explosives v. A.E. Ottaviano, Inc., 20 N.Y.2d 498, 502, 285 N.Y.S.2d 55, 231 N.E.2d 756 ). Leave shall be freely given upon such terms as may be just (see CPLR 3025[b] ). “This favorable treatment applies even if the amendment substantially alters the theory of recovery” (see Kimso Apts., LLC v. Gandhi, 24 N.Y.3d at 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 [internal quotation marks and citations omitted] ).

Here, the proposed amendment to the breach of contract cause of action does not alter the theory of recovery. The complaint alleged that the defendant failed to perform the work in a good and workmanlike manner, albeit in the context of the cause of action alleging negligence. Furthermore, the defendant, who has the burden of establishing prejudice (see Caceras v. Zorbas, 74 N.Y.2d 884, 885, 547 N.Y.S.2d 834, 547 N.E.2d 89 ), failed to assert that it would be prejudiced by permitting the plaintiffs to amend the...