Merritt Constr., Inc. v. Town of Kent

• Decision Date: 01 August 2018
• Docket Number: 2017–01152,Index No. 944/15
• Citation: 83 N.Y.S.3d 251,164 A.D.3d 490
• Parties: MERRITT CONSTRUCTION, INC., respondent, v. TOWN OF KENT, appellant.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 490

83 N.Y.S.3d 251

MERRITT CONSTRUCTION, INC., respondent,

v.TOWN OF KENT, appellant.

2017–01152

Index No. 944/15

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

Argued - March 20, 2018

August 1, 2018

Hogan & Rossi, Brewster, N.Y. (Nancy Tagliafierro, White Plains and Sean Lewis of counsel), for appellant.

Rossi, Crowley, Sancimino & Kilgannon, LLP, Douglaston, N.Y. (Thomas J. Rossi and Sally Sancimino, Douglaston, of counsel), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, BETSY BARROS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Putnam County(James T. Rooney, J.), entered December 5, 2016.The judgment, upon an order of the same court dated May 31, 2016, granting the plaintiff's motion for summary judgment on the complaint, is in favor of the plaintiff and against the defendant in the total sum of $381,347.65.

ORDERED that the judgment is affirmed, with costs.

The plaintiff and the defendant, the Town of Kent, entered into a contract dated September 12, 2013, for the construction of a sewer.By summons and verified complaint dated May 18, 2015, the plaintiff commenced this action, alleging that the Town failed to pay the plaintiff for extra work it performed that was necessary to the performance of the contract and approved by the Town's agent.The plaintiff moved for summary judgment on the complaint, and by order dated May 31, 2016, the Supreme Court granted the motion.The court entered a judgment in favor of the plaintiff and against the Town in the total sum of $381,347.65.The Town appeals from the judgment.

A contractor may recover payment for extra work performed at the defendant's direction that is not contemplated by the terms of the original agreement (seeArnell Constr. Corp. v. New York City Sch. Constr. Auth.,144 A.D.3d 714, 715–716, 41 N.Y.S.3d 101;Ludemann Elec., Inc. v. Dickran,74 A.D.3d 1155, 1156, 903 N.Y.S.2d 532;Hi–Amp Elec. Contr. Corp. v. Maximum Mech. Corp.,37 A.D.3d 541, 541–542, 829 N.Y.S.2d 679 )." ‘The ultimate guide in determining whether or not the contractor is to be paid for extra work is the contract itself’ "( Bilotta Constr. Corp. v. Village of Mamaroneck,199 A.D.2d 230, 231, 604 N.Y.S.2d 966, quotingSavin Bros. v. State of New York,62 A.D.2d 511, 515, 405 N.Y.S.2d 516 ).When parties set down an agreement in a clear, complete document, the writing should be enforced according to its terms (seeArnell Constr. Corp. v. New York City Sch. Constr. Auth.,144 A.D.3d at 716, 41 N.Y.S.3d 101 ).

Here, the plaintiff established, prima facie, that it performed extra work at the defendant's direction that was not contemplated by the terms of the parties' contract.The plaintiff submitted the affidavit of its president and change orders executed by the Town's engineer, which indicated that the work resulted from conditions that were unexpected and unanticipated.Further, the plaintiff established that it performed the work at the direction of the Town's engineer, and that the parties' contract gave the Town's engineer the authority to "decide all questions which may arise as to the fulfillment of the Contract on the part of the Contractor, and his decisions thereon shall be final and conclusive," and to direct the plaintiff in writing to perform extra work...