Schenectady Steel Co., Inc. v. Meyer Contracting Corp.

• Decision Date: 18 May 2010
• Citation: 903 N.Y.S.2d 58,73 A.D.3d 1013
• Parties: SCHENECTADY STEEL CO., INC., respondent, v. MEYER CONTRACTING CORP., et al., appellants.
• Court: New York Supreme Court — Appellate Division

903 N.Y.S.2d 58

73 A.D.3d 1013

SCHENECTADY STEEL CO., INC., respondent,

v.MEYER CONTRACTING CORP., et al., appellants.

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

May 18, 2010.

Corbally, Gartland and Rappleyea, LLP, Poughkeepsie, N.Y. (William W. Frame of counsel), for appellants.

Breakell Law Firm P.C., Albany, N.Y. (Paul C. Marthy of counsel), for respondent.

MARK C. DILLON, J.P., ANITA R. FLORIO, JOHN M. LEVENTHAL, and SHERI S. ROMAN, JJ.

In an action to recover damages for breach of contract, the defendants appeal, (1) as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated March 3, 2009, as denied that branch of their motion which was for leave to renew their opposition to that branch of the plaintiff's motion which was for summary judgment on somuch of the complaint as sought to recover damages in an amount that they allege represents the costs of completion of a construction project incurred by the defendant Meyer Contracting Corp. after June 21, 2002, which had been determined in an order of the same court dated October 30, 2008, and (2) an order and judgment (one paper) of the same court dated April 14, 2009, which, upon the orders, inter alia, is in favor of the plaintiff and against them in the total sum of $79,063.36. The notice of appeal from the order dated March 3, 2009, is deemed also to be a notice of appeal from the order and judgment ( see CPLR 5501[c] ).

ORDERED that the appeal from the order dated March 3, 2009, is dismissed; and it is further,

ORDERED that the order and judgment is reversed, on the law, on the facts, and in the exercise of discretion, with costs, that branch of the defendants' motion which was for leave to renew their opposition to that branch of the plaintiff's motion which was for summary judgment on so much of the complaint as sought to recover damages in an amount that the defendants allege represents the costs of completion of the subject construction project incurred by the defendant Meyer Contracting Corp. after June 21, 2002, is granted, upon renewal, the determination in the order dated October 30, 2008, granting that branch of the plaintiff's motion is vacated and that branch of the plaintiff's motion is denied, and the orders dated October 30, 2008, and March 3, 2009, are modified accordingly.

The appeal from the intermediate order dated March 3, 2009, must be dismissed because the right of appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from that order are brought up for review and have been considered on the appeal from the order and judgment ( see CPLR 5501[a][1] ).

A motion for leave to renew must be supported by new or additional facts "not offered on the prior motion that would change the prior determination," and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][2], [3]; see Barnett v. Smith, 64 A.D.3d 669, 883 N.Y.S.2d 573; Chernysheva v. Pinchuck, 57 A.D.3d 936, 871 N.Y.S.2d 621; Dinten-Quiros v. Brown, 49 A.D.3d 588, 852 N.Y.S.2d 793; Madison v. Tahir, 45 A.D.3d 744, 846 N.Y.S.2d 313).

In the instant dispute, the plaintiff and the defendant Meyer Contracting Corp. (hereinafter Meyer) entered into a contract on December 12, 2001, pursuant to which the plaintiff, as subcontractor, agreed to provide Meyer, as contractor, with steel and steel erection services in connection with a school construction project. The contract recited that, if the plaintiff failed "in the performance of any of the covenants" it was obligated to perform under the contract, Meyer...