Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Spectrum Painting Contractors, Inc. v. Kreisler Borg Florman General Construction Co.

July 7, 2009

SPECTRUM PAINTING CONTRACTORS, INC., PLAINTIFF,
v.
KREISLER BORG FLORMAN GENERAL CONSTRUCTION CO., INC., DEFENDANT-RESPONDENT-APPELLANT, MIRIAM OSBORN MEMORIAL HOME ASSOCIATION, DEFENDANT-APPELLANT- RESPONDENT, SKYLINE STEEL CORP., DEFENDANT-RESPONDENT- APPELLANT, R & J CONSTRUCTION CORP., ET AL., DEFENDANTS- RESPONDENTS, ET AL., DEFENDANTS. (ACTION NO. 1) FRANK & LINDY PLUMBING & HEATING, INC., PLAINTIFF, SEABOARD SURETY COMPANY, ET AL., DEFENDANTS, (ACTION NO. 2) OLD CASTLE PRECAST, INC., D/B/A SPANCRETE NORTHEAST,
PLAINTIFF,
SEABOARD SURETY COMPANY, ET AL., DEFENDANTS. (ACTION NO. 3) BYRAM CONCRETE & SUPPLY, INC., PLAINTIFF, OSBORN, ET AL., DEFENDANTS. (ACTION NO. 4) EASTERN EXCAVATION, INC., PLAINTIFF, SEABOARD SURETY COMPANY, DEFENDANT. (ACTION NO. 5) MIRIAM OSBORN MEMORIAL HOME ASSOCIATION, RESPONDENT-APPELLANT, KREISLER BORG FLORMAN GENERAL CONSTRUCTION CO., INC., APPELLANT-RESPONDENT, ET AL., DEFENDANT. (ACTION NO. 6) CLASSICO BUILDING MAINTENANCE, INC., PLAINTIFF, KREISLER BORG FLORMAN GENERAL CONSTRUCTION CO., INC., DEFENDANT. (ACTION NO. 7)



In seven related actions, inter alia, to recover damages for breach of contract, (1) Kreisler Borg Florman General Construction Co., Inc., appeals from so much of an order of the Supreme Court, Westchester County (Nicolai, J.), entered January 9, 2008, as denied that branch of its cross motion in Action No. 6 which was for summary judgment limiting the potential recovery of Miriam Osborn Memorial Home Association against it in that action for delay damages to the sum of $350,000, and Miriam Osborn Memorial Home Association cross-appeals, as limited by its notice of appeal and brief, from so much of the same order as granted that branch of the cross motion of Kreisler Borg Florman General Construction Co., Inc., in Action No. 6 which was, in effect, for summary judgment dismissing the complaint insofar as asserted against it to the extent that the complaint sought to recover damages from Kreisler Borg Florman General Construction Co., Inc., in that action in the amount of unreimbursed casualty and property damage remediation claims submitted by Miriam Osborn Memorial Home Association to its insurer, (2) Miriam Osborn Memorial Home Association separately appeals from a second order of the same court, also entered January 9, 2008, which denied its motion in Action No. 6 for summary judgment dismissing the counterclaim to recover damages for breach of contract asserted against it by Kreisler Borg Florman General Construction Co., Inc., in that action and denied its motion in Action No. 1 for summary judgment dismissing the cross claim to foreclose a mechanic's lien asserted against it by Kreisler Borg Florman General Construction Co., Inc., in that action, (3) Miriam Osborn Memorial Home Association separately appeals from so much of a third order of the same court, also entered January 9, 2008, as denied those branches of its separate motion in Action No. 1 which were for summary judgment dismissing so much of the cross claim to foreclose a mechanic's lien asserted against it by Skyline Steel Corp. in that action, as was based on extra work that it did not approve in writing and work performed or materials delivered prior to the operative date of certain release documents, and Skyline Steel Corp. cross-appeals from stated portions of the same order, (4) Miriam Osborn Memorial Home Association separately appeals from so much of a fourth order of the same court, also entered January 9, 2008, as denied those branches of its separate motion in Action No. 1 which were for summary judgment dismissing so much of the cause of action to foreclose a mechanic's lien asserted against it by Spectrum Painting Contractors, Inc., in that action, as was based on extra work that it did not approve in writing and work performed or materials delivered prior to the operative date of certain release documents, (5) Miriam Osborn Memorial Home Association separately appeals from so much of a fifth order of the same court, also entered January 9, 2008, as denied those branches of its separate motion in Action No. 1 which were for summary judgment dismissing so much of the cross claim to foreclose a mechanic's lien asserted against it by Mensch Mill & Lumber Corp. in that action, as was based on extra work that it did not approve in writing and work performed or materials delivered prior to the operative date of certain release documents, (6) Miriam Osborn Memorial Home Association separately appeals from so much of a sixth order of the same court, also entered January 9, 2008, as denied that branch of its separate motion in Action No. 1 which was for summary judgment dismissing the cross claim to recover damages for unjust enrichment asserted against it by Eastern Excavation, Inc., in that action, (7) Miriam Osborn Memorial Home Association separately appeals from a seventh order of the same court, also entered January 9, 2008, which denied its separate motion in Action No. 1 for summary judgment dismissing so much of the cross claim to foreclose a mechanic's lien asserted against it by Oldcastle Precast, Inc., d/b/a Spancrete Northeast, in that action, as was based on extra work that it did not approve in writing and work performed or materials delivered prior to the operative date of certain release documents, (8) Miriam Osborn Memorial Home Association separately appeals from so much of an eighth order of the same court, also entered January 9, 2008, as denied that branch of its separate motion in Action No. 1 which was for summary judgment dismissing so much of the cross claim to foreclose a mechanic's lien asserted against it by Advanced Epoxy Flooring Systems, Inc., in that action, as was based on work performed or materials delivered prior to the operative date of certain release documents, (9) Miriam Osborn Memorial Home Association separately appeals from so much of a ninth order of the same court, also entered January 9, 2008, as denied that branch of its separate motion in Action No. 1 which was for summary judgment dismissing so much of the cross claim to foreclose a mechanic's lien asserted against it by Navillus Contracting, Inc., in that action, as was based on work performed or materials delivered prior to the operative date of certain release documents, (10) Miriam Osborn Memorial Home Association separately appeals from a tenth order of the same court, also entered January 9, 2008, which denied its separate motion in Action No. 1 for summary judgment dismissing so much of the cross claim to foreclose a mechanic's lien asserted against it by MGC Stone Company, Inc., in that action, as was based on extra work that it did not approve in writing and work performed or materials delivered prior to the operative date of certain release documents, (11) Miriam Osborn Memorial Home Association separately appeals from so much of an eleventh order of the same court, also entered January 9, 2008, as denied those branches of its separate motion in Action No. 1 which were for summary judgment dismissing so much of the cross claim to foreclose a mechanic's lien asserted against it by M. Gottfried, Inc., in that action, as was based on extra work that it did not approve in writing and work performed or materials delivered prior to the operative date of certain release documents, (12) Miriam Osborn Memorial Home Association separately appeals from a twelfth order of the same court, also entered January 9, 2008, which denied its separate motion in Action No. 1 for summary judgment dismissing so much of the cross claim to foreclose a mechanic's lien asserted against it by Acme Architectural Products, Inc., in that action, as was based on extra work that it did not approve in writing and work performed or materials delivered prior to the operative date of certain release documents, (13) Miriam Osborn Memorial Home Association separately appeals from a thirteenth order of the same court, also entered January 9, 2008, which denied its separate motion in Action No. 1 for summary judgment dismissing the cross claims to recover damages for breach of contract and unjust enrichment asserted against it by Mariano Cardillo & Sons, Inc., in that action, and dismissing so much of the cross claim to foreclose a mechanic's lien asserted against it by Mariano Cardillo & Sons, Inc., in that action, as was based on extra work that it did not approve in writing and work performed or materials delivered prior to the operative date of certain release documents, (14) Miriam Osborn Memorial Home Association separately appeals from so much of a fourteenth order of the same court, also entered January 9, 2008, as denied those branches of its separate motion in Action No. 1 which were for summary judgment dismissing the cross claim to recover damages asserted against it by R & J Construction Corp. in that action, and dismissing so much of the cross claim to foreclose a mechanic's lien asserted against it by R & J Construction Corp., in that action, as was based on extra work that it did not approve in writing and work performed or materials delivered prior to the operative date of certain release documents, (15) Miriam Osborn Memorial Home Association separately appeals from a fifteenth order of the same court, also entered January 9, 2008, which granted, in part, the cross motion of R & J Construction Corp., (16) Miriam Osborn Memorial Home Association separately appeals from so much of a sixteenth order of the same court, also entered January 9, 2008, as denied those branches of its separate motion in Action No. 1 which were for summary judgment dismissing the cross claim to foreclose a mechanic's lien asserted against it by Nationwide Mechanical Contractors Corp. in that action, as was based on extra work that it did not approve in writing and work performed or materials delivered prior to the operative date of certain release documents, (17) Miriam Osborn Memorial Home Association separately appeals from so much of a seventeenth order of the same court, also entered January 9, 2008, as denied those branches of its separate motion in Action No. 1 which were for summary judgment dismissing the cross claim to foreclose a mechanic's lien asserted against it by Frank & Lindy Plumbing & Heating, Inc., in that action, as was based on extra work that it did not approve in writing and work performed or materials delivered prior to the operative date of certain release documents, (18) Miriam Osborn Memorial Home Association separately appeals from so much of an eighteenth order of the same court, also entered January 9, 2008, as denied those branches of its separate motion in Action No. 1 which were for summary judgment dismissing the cross claim to foreclose a mechanic's lien asserted against it by Solar Electric Systems, Inc., in that action, as was based on extra work that it did not approve in writing and work performed or materials delivered prior to the operative date of certain release documents, and (19) Miriam Osborn Memorial Home Association separately appeals from a nineteenth order of the same court, also entered January 9, 2008, which denied its cross motion in Action No. 1 for summary judgment dismissing the cross claim to enforce a trust pursuant to Lien Law article 3-A asserted against it by Solar Electric Systems, Inc., in that action.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ROBERT A. SPOLZINO, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL and PLUMMER E. LOTT, JJ.

(Index Nos. 3122/02, 18929/02, 20696/02, 19652/02 19558/01, 9273/02, 9452/05)

DECISION & ORDER

ORDERED that the cross appeal from the third order entered January 9, 2008, is dismissed, as Skyline Steel Corp. is not aggrieved by the portions of the order cross-appealed from (see CPLR 5511); and it is further,

ORDERED that the appeal from the fifteenth order entered January 9, 2008, is dismissed as abandoned; and it is further,

ORDERED that the first order entered January 9, 2008, is affirmed insofar as appealed and cross-appealed from; and it is further,

ORDERED that the second, seventh, tenth, twelfth, and nineteenth orders entered January 9, 2008, are affirmed; and it is further,

ORDERED that the third order entered January 9, 2008, is affirmed insofar as appealed from by Miriam Osborn Memorial Home Association; and it is further,

ORDERED that the fourth order entered January 9, 2008 is modified, on the law, by deleting the provision thereof denying that branch of the separate motion of Miriam Osborn Memorial Home Association in Action No. 1 which was for summary judgment dismissing so much of the cause of action to foreclose a mechanic's lien asserted against it by Spectrum Painting Contractors, Inc., in that action as was based on extra work that it did not approve in writing and substituting therefor a provision granting that branch of the separate motion; as so modified, the fourth order entered January 9, 2008, is affirmed insofar as appealed from; and it is further,

ORDERED that the fifth, eighth, ninth, eleventh, sixteenth, seventeenth, and eighteenth orders entered January 9, 2008, are affirmed insofar as appealed from; and it is further,

ORDERED that the sixth order entered January 9, 2008, is reversed insofar as appealed from, on the law, and that branch of the separate motion of Miriam Osborn Memorial Home Association in Action No. 1 which was for summary judgment dismissing the cross claim to recover damages for unjust enrichment asserted against it by Eastern Excavation, Inc., in that action is granted; and it is further,

ORDERED that the thirteenth order entered January 9, 2008, is modified, on the law, by deleting the provisions thereof denying those branches of the separate motion of Miriam Osborn Memorial Home Association in Action No. 1 which were for summary judgment dismissing the cross claims to recover damages for breach of contract and unjust enrichment asserted against it by Mariano Cardillo & Sons, Inc., in that action and substituting therefor provisions granting those branches of the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.