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Town of Angelica v. Smith

November 18, 2011

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.



Appeal from an order of the Supreme Court, Allegany County (Gerald J. Whalen, J.), dated October 6, 2010.

Town of Angelica v Smith

Appellate Division, Fourth Department

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.

Decided on November 18, 2011

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

The order granted in part the motion of defendants for partial summary judgment and rejected the cross motion of plaintiff for partial summary judgment.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying defendants' motion in its entirety and reinstating the first, second and third causes of action and as modified the order is affirmed without costs.

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 NY2d 350, 353-354; Paul Revere Life Ins. Co. v Campagna, 233 AD2d 954), "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 NY2d 772, 774; see Aridas v Caserta, 41 NY2d 1059, 1061).

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 AD2d 957 [internal quotation marks omitted]; see Town of Wilson v Town of Newfane, 192 AD2d 1095). 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 AD3d 977, 978). "In any event, [a]s an appellate court, we are not precluded from addressing the merits of the [cross] motion' " (Sexstone v Amato, 8 AD3d 1116, 1117, lv denied 3 NY3d 609; see Giardina v Lippes, 77 AD3d 1290, 1291, lv denied 16 NY3d 702).

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 AD3d 721, 722). Furthermore, "this Court is not bound by the doctrine of law of the case because that doctrine does not ...


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