Town of Angelica v. Smith

• Decision Date: 18 November 2011
• Citation: 2011 N.Y. Slip Op. 08434,89 A.D.3d 1547,933 N.Y.S.2d 480
• Parties: TOWN OF ANGELICA, Plaintiff–Appellant, v. Joel S. SMITH, individually and as President of Aggressive Company, Inc., Doing Business as Diversified Contracting Company and Aggressive Company, Inc., Doing Business as Diversified Contracting Company, Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08434

89 A.D.3d 1547

933 N.Y.S.2d 480

TOWN OF ANGELICA, Plaintiff–Appellant,

v.Joel S. SMITH, individually and as President of Aggressive Company, Inc., Doing Business as Diversified Contracting Company and Aggressive Company, Inc., Doing Business as Diversified Contracting Company, Defendants–Respondents.

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

Nov. 18, 2011.

Hodgson Russ LLP, Buffalo (Ryan K. Cummings of Counsel), for Plaintiff–Appellant.

Pirrello, Missal, Personte & Feder, Rochester (Steven E. Feder of Counsel), for Defendants–Respondents.

PRESENT: SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ.

MEMORANDUM:

Plaintiff, Town of Angelica (Town), is the owner of property known as the “Grange Building.” In August 2001, the Town Board accepted a proposal from defendants to perform certain work related to raising the building and constructing a concrete basement underneath it and, in November 2001, the Town Supervisor accepted two proposals from defendants for significant renovation work to the interior and exterior of the building. In February 2002, however, the Town Board resolved to terminate defendants from the project. Defendants filed a lien against the property, and the Town thereafter commenced this action seeking, inter alia, rescission of the three purported agreements, vacatur of the lien and recovery of all money previously paid to defendants. Defendants asserted two counterclaims alleging that the Town had breached the agreements and that defendants' lien was valid.

Before any significant discovery was conducted, the Town moved for partial summary judgment, contending only that the agreements were void based on violations of General Municipal Law § 103. In opposition to that motion, defendant Joel S. Smith, individually and as President of Aggressive Company, Inc., doing business as Diversified Contracting Company, submitted an affidavit averring that the competitive bidding requirements of section 103 did not apply because the work performed by defendants was specialized. When the Town did not submit a reply, Supreme Court (Himelein, J.), deemed Smith's averments to be admitted. Although the Town filed a notice of appeal from the order denying its motion, it did not perfect the appeal, and the appeal was automatically dismissed pursuant to 22 NYCRR 1000.12(b).

Following additional discovery, defendants moved for partial summary judgment seeking dismissal of the first through fourth and eighth causes of action, as well as summary judgment on their counterclaim for damages. The Town opposed the motion and cross-moved for partial summary judgment on the first through fourth causes of action, as well as summary judgment dismissing the counterclaims. We conclude that Supreme Court (Whalen, J.) erred in granting defendants' motion in part and dismissing the first, second and third causes of action. We therefore modify the order by denying defendants' motion in its entirety and reinstating those causes of action.

Contrary to defendants' procedural contentions, we have the discretion to address the merits of defendants' motion and the cross motion. First, although the dismissal of an appeal for want of prosecution generally precludes review of any issues that were, or could have been, raised on the prior appeal ( see generally Bray v. Cox, 38 N.Y.2d 350, 353–354, 379 N.Y.S.2d 803, 342 N.E.2d 575; Paul Revere Life Ins. Co. v. Campagna, 233 A.D.2d 954, 649 N.Y.S.2d 113), “an appellate court has the authority to entertain a second appeal in the exercise of its discretion, even where a prior appeal on the same issue has been dismissed for failure to prosecute” ( Faricelli v. TSS Seedman's, 94 N.Y.2d 772, 774, 698 N.Y.S.2d 588, 720 N.E.2d 864; see Aridas v. Caserta, 41 N.Y.2d 1059, 1061, 396 N.Y.S.2d 170, 364 N.E.2d 835).

Second, we may properly entertain the appeal with respect to the Town's cross motion for summary judgment despite the fact that the Town previously moved for summary judgment. It is well established that “successive summary judgment motions should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause” ( Farrell v. Okeic, 303 A.D.2d 957, 755 N.Y.S.2d 677 [internal quotation marks omitted]; see Town of Wilson v. Town of Newfane, 192 A.D.2d 1095, 596 N.Y.S.2d 266). That rule, however, is discretionary. “[A] subsequent summary judgment motion may be properly entertained when ‘it is substantively valid and [when] the granting of the motion will further the ends of justice while eliminating an unnecessary burden on the resources of the courts' ” ( Rose v. Horton Med. Ctr., 29 A.D.3d 977, 978, 816 N.Y.S.2d 174). “In any event, ‘[a]s an appellate court, we are not precluded from addressing the merits of the [cross] motion’ ” ( Sexstone v. Amato, 8 A.D.3d 1116, 1117, 778 N.Y.S.2d 635, lv. denied 3 N.Y.3d 609, 786 N.Y.S.2d 812, 820 N.E.2d 291; see Giardina v. Lippes, 77 A.D.3d 1290, 1291, 909 N.Y.S.2d 602, lv. denied 16 N.Y.3d 702, 2011 WL 135242).

Third, we are not bound by the doctrine of law of the case. Defendants contend that the determination in the prior order, i.e., that the Town was deemed to have admitted that defendants' work was specialized, constitutes the law of the case and precludes the Town from challenging the validity of the agreements. We reject that contention. “The doctrine of ... law of the case seeks to prevent relitigation of issues of law that have already been determined at an earlier stage of the proceeding ... The doctrine applies only to legal determinations that were necessarily resolved on the merits in a prior decision ... The doctrine may be ignored in extraordinary circumstances such as a change in law or a showing of new evidence” ( Brownrigg v. New York City Hous. Auth., 29 A.D.3d 721, 722, 815 N.Y.S.2d 681). Furthermore, “this Court is not bound by the doctrine of law of the case because that doctrine ‘does not prohibit appellate review of a subordinate court's order’ ” ( Matter of Jonathan M., 61 A.D.3d 1374, 1375, 877 N.Y.S.2d 575; see Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867, rearg. denied 37 N.Y.2d 817, 375 N.Y.S.2d 1029, 338 N.E.2d 332; Hampton Val. Farms, Inc. v. Flower & Medalie, 40 A.D.3d 699, 835 N.Y.S.2d 678).

We conclude that the court (Himelein, J.) erred in deeming Smith's averments to be admitted. The failure of a movant to submit a reply to opposition papers should not be deemed an admission because, at that point, the movant no longer has any burden. On a summary judgment motion, the movant has the initial burden of establishing its entitlement to judgment as a matter of law ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Once that initial burden has been met, the opposing party has the burden of establishing “facts sufficient to require a trial of any issue of fact” (CPLR 3212[b]; see generally Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). In the event that the opposing party fails to submit evidentiary facts to controvert the facts set forth in the movant's papers, the facts in those papers may be deemed admitted and summary judgment granted inasmuch as no triable issue of fact exists ( see Kuehne & Nagel v. Baiden, 36 N.Y.2d 539, 544, 369 N.Y.S.2d 667, 330 N.E.2d 624; see e.g. Matter of Johnsen v. ACP Distrib., Inc., 31 A.D.3d 172, 179, 814 N.Y.S.2d 142; SportsChannel Assoc. v. Sterling Mets, L.P., 25 A.D.3d 314, 807 N.Y.S.2d 61). In the absence of a cross motion, there is no burden on the movant to submit a reply, and thus the court should not deem facts raised in opposition to a motion for summary judgment to be admitted. In any event, the Town submitted newly discovered evidence permitting reconsideration of the prior determination denying its motion ( see Farrell, 303 A.D.2d 957, 755 N.Y.S.2d 677).

Having dispensed with the procedural contentions, we agree with the Town that the court (Whalen, J.) erred in granting defendants' motion in part and dismissing the first, second and third causes of action.

With respect to the first cause of action, the Town alleged that...