Town of Moriah v. Cole-Layer-Trumble Co.

Decision Date20 January 1994
Docket NumberCOLE-LAYER-TRUMBLE
Citation200 A.D.2d 879,606 N.Y.S.2d 822
PartiesTOWN OF MORIAH, Appellant-Respondent, v.COMPANY, Respondent, and County of Essex, Respondent-Appellant.
CourtNew York Supreme Court — Appellate Division

McPhillips, Fitzgerald & Meyer (William J. White, of counsel), Glens Falls, for appellant-respondent.

Richard B. Meyer, County Atty., Elizabethtown, for respondent-appellant.

Ganz & Wolkenbreit (Robert E. Ganz, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and CREW, WHITE, CASEY and YESAWICH, JJ.

YESAWICH, Justice.

Cross appeals from an order of the Supreme Court (Dier, J.), entered February 5, 1993 in Essex County, which granted defendant Cole-Layer-Trumble Company's motion to dismiss the complaint against it and partially granted defendant County of Essex's motion for summary judgment dismissing the complaint against it.

In April 1988 defendant County of Essex entered into an agreement with defendant Cole-Layer-Trumble Company (hereinafter CLT) which provided that CLT was to perform assessment data collection and valuation services with regard to all of the real property in the County, for which services the County would pay approximately $1.2 million. This amount would ultimately be charged, in proportional shares, to the 18 towns in the County, of which plaintiff is one (see, Real Property Tax Law § 1536[5]. In addition to the valuation services, the County and the towns were to receive copies of a randomly accessible computer disc containing video images of each parcel of property, a license to use the disc and computer workstations. CLT also agreed to furnish certain services to the assessors of each town, including assistance in addressing grievances filed by landowners with the board of review, and aid with RPTL article 7 certiorari proceedings.

By November 1990 plaintiff, having become dissatisfied with CLT's performance, refused to remit its share of the amount due under the contract. The following month, however, plaintiff agreed to pay its share in exchange for the County's promise to retain $39,000 of the payment in escrow until plaintiff was able to resolve its dispute with CLT. The funds were not to be released from escrow without written authorization from both plaintiff and CLT.

In August 1992 the County, pursuant to resolution, withdrew the escrowed funds and paid CLT the remainder due under the contract. On the same day the County resolution was passed plaintiff commenced this action, seeking an injunction barring the County from charging back to plaintiff its pro rata share of the contract price, damages from CLT for breach of contract and a declaration of the rights of the parties. Apparently believing that the escrow moneys had not been paid out, plaintiff also moved, by order to show cause served with the summons and complaint, for a preliminary injunction restraining the County from doing so; Supreme Court denied the motion.

Thereafter, CLT moved pursuant to CPLR 3211 for dismissal of the complaint against it, and the County moved pursuant to CPLR 3212 for summary judgment dismissing the complaint against it. Supreme Court granted CLT's motion, concluding that plaintiff was not an intended beneficiary under the contract and hence has no right to sue for its alleged breach (see, Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 66 N.Y.2d 38, 44-45, 495 N.Y.S.2d 1, 485 N.E.2d 208), and partially granted the County's motion, dismissing all claims against it except for a cause of action sounding in breach of the escrow agreement. Plaintiff and the County both appeal.

We do not share Supreme Court's view that plaintiff has no right to bring suit as a third-party beneficiary of the contract between CLT and the County. Both the contract itself and the surrounding circumstances indicate that the promisee--the County--intended to give plaintiff and the other towns in the County the benefit of CLT's promised performance, namely, the services and "deliverables" to be provided by CLT under the contract. Inasmuch as the data collection and valuation services are of use primarily in the assessment of property, which is solely the towns' responsibility, it is evident that the County was acting on behalf of the towns in executing the contract. Furthermore, the resolution by which the...

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    ...their burden of establishing that the SIDA board members carried out public business in private (see, Town of Moriah v. Cole-Layer-Trumble Co., 200 A.D.2d 879, 881, 606 N.Y.S.2d 822), or that they attempted to circumvent the provisions of the Open Meetings Law (see, Incorporated Vil. of Phi......
  • Nyahsa Servs., Inc. v. People Care Inc.
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    • July 7, 2016
    ...dismissal of this particular claim under CPLR 3211(a)(7) was not warranted (see Town of Moriah v. Cole–Layer–Trumble Co., 200 A.D.2d 879, 880, 606 N.Y.S.2d 822 [1994] ; compare IMS Engrs.-Architects, P.C. v. State of New York, 51 A.D.3d 1355, 1357, 858 N.Y.S.2d 486 [2008], lv. denied 11 N.Y......
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    ...trust. Accordingly, dismissal of this particular claim under CPLR 3211(a)(7) was not warranted (see Town of Moriah v. Cole–Layer–Trumble Co., 200 A.D.2d 879, 880, 606 N.Y.S.2d 822 [1994] ; compare IMS Engrs.–Architects, P.C. v. State of New York, 51 A.D.3d 1355, 1357, 858 N.Y.S.2d 486 [2008......
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    ...orders neither mention nor manifest an intent to confer specific legal rights upon InterGen."); Town of Moriah v. Cole-Layer-Trumble Co., 200 A.D.2d 879, 880, 606 N.Y.S.2d 822 (N.Y.App.Div.1994) ("Both the contract itself and the surrounding circumstances indicate that the promisee — the Co......
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