Moulton Paving, LLC v. Town of Poughkeepsie

• Decision Date: 19 September 2012
• Citation: 950 N.Y.S.2d 762,98 A.D.3d 1009,2012 N.Y. Slip Op. 06196
• Parties: MOULTON PAVING, LLC, et al., appellants, v. TOWN OF POUGHKEEPSIE, et al., respondents.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 1009

950 N.Y.S.2d 762

2012 N.Y. Slip Op. 06196

MOULTON PAVING, LLC, et al., appellants,

v.TOWN OF POUGHKEEPSIE, et al., respondents.

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

Sept. 19, 2012.

Bellantoni Law Firm, LLP, Scarsdale, N.Y. (Rory J. Bellantoni and Amy L. Bellantoni of counsel), for appellants.

McCabe & Mack, LLP, Poughkeepsie, N.Y. (David L. Posner and Kimberly Hunt of counsel), for respondents Town of Poughkeepsie and Mark Pfeiffer.

Milber Makris Plousadis & Seiden, LLP, White Plains, N.Y. (David C. Zegarelli of counsel), for respondents Marquise Construction and Development Corp., Bill Robbie, and Robin “Doe.”

Lewis & Greer, P.C., Poughkeepsie, N.Y. (J. Scott Greer, Veronica A. McMillan, and Alana R. Bartley of counsel), for respondents MA Morris Associates–Engineering Consultants, PLLC, and Mark Long.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ.

In an action, inter alia, to recover damages for breach of contract and tortious interference with contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated March 3, 2011, as granted that branch of the motion of the defendants Marquise Construction and Development Corp., Bill Robbie, and Robin “Doe” which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, granted that branch of the cross motion of the defendants MA Morris Associates–Engineering Consultants, PLLC, and Mark Long which was for summary judgment dismissing the cause of action alleging tortious interference with contract insofar as asserted against them, and granted that branch of the cross motion of the defendants Town of Poughkeepsie and Marc Pfeiffer which was for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The defendant Marquise Construction and Development Corp. (hereinafter Marquise) was retained by the defendant Town of Poughkeepsie for a road improvement project (hereinafter the Project). Pursuant to the contract between Marquise and the Town, Marquise was permitted to hire subcontractors subject to the approval of the Town's engineering consultant for the Project, the defendant MA Morris Associates–Engineering Consultants, PLLC (hereinafter Morris). Marquise was required to submit the names of its chosen subcontractors to the defendant Mark Long, a Morris employee who was the Project engineer, for acceptance or rejection in a timely manner so as to avoid delay of the Project. The defendant Bill Robbie, a Project manager and site supervisor with Marquise, selected the plaintiff Moulton Paving, LLC (hereinafter Moulton), owned and operated by the plaintiff Joshua Reich, to perform the work required for the Project, and an unsigned subcontract agreement was delivered to Moulton on September 3, 2009. The initial communication between Moulton and Marquise took place in June or July of 2009, but Marquise did not inform Long of its selection of Moulton until September 16, 2009, several days before work was scheduled to begin. On September 17, 2009, after Reich met with the defendant Mark Pfeiffer, the Town Highway Superintendent, Robin “Doe,” a Marquise employee, and Long, Robbie contacted Reich and advised him that Moulton had been terminated based upon the Town's rejection of Moulton.

The plaintiffs, Moulton and Reich, commenced the instant action alleging breach of contract as against Marquise, and tortious interference with contract and with a prospective business advantage as against the remaining defendants. With regard to the tortious interference causes of action, the plaintiffs alleged that the Town's rejection of Moulton was motivated by discrimination against Reich because he is a Hassidic Jew, a fact of which the defendants were not aware until meeting Reich for the first time on September 16, 2009.

The Supreme Court determined that there was no valid contract in existence between the plaintiffs and Marquise, and that the plaintiffs failed to raise a triable issue of fact in opposition to the defendants' prima facie showing that the Town rejected Moulton as paving contractor for legitimate business reasons. We agree.

The existence of a binding contract is an essential element of a cause of action to recover damages for breach of contract ( see Elisa Dreier Reporting Corp. v. Global NAPs Networks, Inc., 84 A.D.3d 122, 127, 921 N.Y.S.2d 329;Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 A.D.3d 804, 806, 921 N.Y.S.2d 260;JP Morgan Chase v. J.H. Elec. of N.Y., Inc., 69 A.D.3d 802, 803, 893 N.Y.S.2d 237), as well as for tortious interference with a contract ( see Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 424, 646 N.Y.S.2d 76, 668 N.E.2d 1370;Miller v. Theodore–Tassy, 92 A.D.3d 650–651, 938 N.Y.S.2d 172;Monex Fin. Servs., Ltd. v. Dynamic Currency Conversion, Inc., 76 A.D.3d 515, 904 N.Y.S.2d 919;Dome Prop. Mgt., Inc. v. Barbaria, 47 A.D.3d 870, 850 N.Y.S.2d 208;Beecher v. Feldstein, 8 A.D.3d 597, 598, 780 N.Y.S.2d 153).

“ ‘[I]f the parties to an agreement do not intend it to be binding upon them until it is reduced to writing and signed by both of them, they are not bound and may not be held liable until it has been written out and signed’ ” ( ADCO Elec. Corp. v. HRH Constr., LLC, 63 A.D.3d 653, 654, 880 N.Y.S.2d 188, quoting Scheck v. Francis, 26 N.Y.2d 466, 469–470, 311 N.Y.S.2d 841, 260 N.E.2d 493;see Matter of Municipal Consultants & Publs. v. Town of Ramapo, 47 N.Y.2d 144, 148, 417 N.Y.S.2d 218, 390 N.E.2d 1143;Lost Cr. Assoc. v. Marine Midland Bank, 293 A.D.2d 719, 720, 741 N.Y.S.2d 115). “Moreover, when the parties' intent to be bound by a contractual obligation ‘is determinable by written agreements, the question is one of law’ ” ( ADCO Elec. Corp. v. HRH Constr., LLC, 63 A.D.3d at 654, 880 N.Y.S.2d 188, quoting Mallad Constr. Corp. v. County Fed. Sav. & Loan Assn., 32 N.Y.2d 285, 291, 344 N.Y.S.2d 925, 298 N.E.2d 96;see Berghold v. Kirschenbaum, 287 A.D.2d 673, 731 N.Y.S.2d 764).

In support of that branch of their motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against them, Marquise, Robbie, and “Doe” (hereinafter collectively the Marquise defendants) submitted a copy of the Subcontractor's Agreement (hereinafter the Agreement) that Marquise delivered to Moulton on September 3, 2009. Subsection 5.5 of the Agreement provided that “The agreement, as tendered, shall in no way be construed to be a binding agreement, nor shall it in any way be considered or identified as an instrument or document of intent upon the part of Marquise ..., only upon complete execution of the Subcontract Agreement by an officer of Marquise ..., and the subsequent delivery thereof, is the Agreement considered to be effective and a binding agreement.” This clear language established Marquise's intent, as a matter of law ( see Mallad Constr. Corp. v. County Fed. Sav. & Loan Assn., 32 N.Y.2d at 291, 344 N.Y.S.2d 925, 298 N.E.2d 96;ADCO Elec. Corp. v. HRH Constr., LLC, 63 A.D.3d at 654, 880 N.Y.S.2d 188;Berghold v. Kirschenbaum, 287 A.D.2d at 673, 731 N.Y.S.2d 764), that it not be bound and not be held liable under the Agreement unless and until it was signed by Marquise ( see Municipal Consultants & Publs. v. Town of Ramapo, 47 N.Y.2d at 148, 417 N.Y.S.2d 218, 390 N.E.2d 1143;Scheck v. Francis, 26 N.Y.2d at 469–470, 311 N.Y.S.2d 841, 260 N.E.2d 493;ADCO Elec. Corp. v. HRH Constr., LLC, 63 A.D.3d at 654, 880 N.Y.S.2d 188;Lost Cr. Assoc. v. Marine Midland Bank, 293 A.D.2d at 720, 741 N.Y.S.2d 115). Since it is undisputed that the Agreement was never signed by either party, the Marquise defendants established conclusively, as a matter of law, that there was no contract in existence at the time of the alleged breach.

We reject the plaintiffs' contention that, upon the subcontractor's commencement of work on the Project, the provision in subsection 1.1 of the Agreement, stating that the Agreement was to “be considered accepted by both parties as is, as if signed,” applied even if the Agreement remained unsigned by Marquise. “[W]here...