O'Neill v. Town of Fishkill

• Decision Date: 23 November 1987
• Citation: 521 N.Y.S.2d 272,134 A.D.2d 487
• Parties: Francis E. O'NEILL, Appellant, v. TOWN OF FISHKILL, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 272

521 N.Y.S.2d 272

134 A.D.2d 487

Francis E. O'NEILL, Appellant, v. TOWN OF FISHKILL, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Nov. 23, 1987.

Anderson, Banks, Moore, Curran & Hollis, Mount Kisco (Maurice F. Curran and Gregory Keefe, of counsel), for appellant.

Drake, Sommers, Loeb, Tarshis & Catania, P.C., Newburgh (Joseph A. Catania, Jr., of counsel), for respondents.

Before MOLLEN, P.J., and EIBER, KUNZEMAN and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for breach of contract and for reformation of a contract, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Rosenblatt, J.), entered June 5, 1986, which granted the defendants' motion for partial summary judgment dismissing his second and sixth causes of action.

ORDERED that the order is reversed, on the law, with costs, and the motion is denied.

On September 30, 1980, after extended negotiations, the parties executed a contract whereby the defendants leased 172 acres of unimproved land from the plaintiff to use as a sanitary landfill site. Pursuant to the contract, the parties agreed that the plaintiff would be paid a monthly fee of $1,000 and $.75 per yard for each yard over 1,000 yards of "refuse" deposited each month.

This action was commenced as a result of a disagreement over whether the plaintiff was to be paid additional compensation for the top soil from his property used in connection with the defendants' use of the landfill for depositing refuse. The second cause of action seeks monetary damages for the use of the plaintiff's top soil. The sixth cause of action, pleaded in the alternative, seeks reformation of the contract to make explicit that the term "[r]efuse" includes the plaintiff's top soil or fill which is combined with the garbage deposited at that site.

As to the second cause of action, we find that a triable issue exists with regard to the language in the contract concerning whether or not the parties agreed that the plaintiff should be paid for soil taken from his property and mixed with the raw garbage deposited there by the defendants.

The contract contains the following provision pertinent to this appeal:

"3. The Owner [the plaintiff] shall provide sufficient soil for operating a Sanitary Land Fill Program * * * [s]aid obligation on the part of the Owner shall be limited to soil material available on the site of the property * * * it being understood by and between the parties that the Owner shall have no obligation to provide soil material from any other source

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"(g) 'Refuse' as used herein shall include, but not be limited to solid wastes of the type such as garbage, rubbish, ashes, incinerator residue, street cleaning, dead animals, and offal. 'Refuse' as used herein shall not include junk cars or any item which is to be salvaged or stockpiled."

If these were the only relevant sections of the contract, we would agree with the Supreme Court that the contract was unambiguous on its face and that extrinsic evidence was inadmissible to determine whether the parties had agreed that the plaintiff should be paid an additional consideration for the "soil material". The contract, however, also provided as follows:

"4. It is understood and agreed by and between the parties hereto that prior to the commencement of the Land Fill Operation by the...