CTS CONTRACTING, INC., FORMERLY KNOWN AS CUSTOM TOPSOIL, INC., PLAINTIFF-RESPONDENT,
TOWN OF CHEEKTOWAGA, DEFENDANT-APPELLANT.
CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (KEVIN E.
LOFTUS OF COUNSEL), FOR DEFENDANT-APPELLANT.
HOLZMAN, PHOTIADIS & GRESENS, LLP, BUFFALO (CHRIS BERLOTH
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
from an order of the Supreme Court, Erie County (Catherine R.
Nugent Panepinto, J.), entered April 27, 2016. The order,
among other things, denied defendant's motion for summary
judgment dismissing the complaint.
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
Plaintiff commenced this action seeking damages for breach of
its emergency snow removal contract with defendant, Town of
Cheektowaga (Town). Plaintiff alleged that the Town breached
the contract by engaging another contractor, in addition to
plaintiff, to perform snow removal work. We conclude that
Supreme Court properly denied the Town's motion for
summary judgment dismissing the complaint.
to the Town's contention, it is not entitled to summary
judgment based upon the language of General Municipal Law
§ 103 (4). That section provides that, "in the case
of a public emergency arising out of an accident or other
unforeseen occurrence or condition whereby circumstances
affecting public buildings, public property or the life,
health, safety or property of the inhabitants of a political
subdivision or district therein require immediate action
which cannot await competitive bidding or competitive
offering, contracts for public work... may be let by the
appropriate officer, board or agency of a political
subdivision or district therein." "An
unforeseen' occurrence or condition is one which is not
anticipated, which creates a situation which cannot be
remedied by the exercise of reasonable care or which is
fortuitous" (Grimm v City of Troy, 60 Misc.2d
579, 582, citing Rodin v Director of Purch. of Town of
Hempstead, 38 Misc.2d 362). "[S]ituations of this
kind must be such as cannot reasonably be foreseen in time to
advertise for bids" (id.). Here, the Town had
already completed the competitive bidding process and awarded
a contract to plaintiff for emergency snow removal. We thus
conclude that section 103 (4) does not apply to this case
(cf. Matter of 4M Holding Co. v Diamante, 215 A.D.2d
383, 383-384; Matter of City of New York v Unsafe Bldg.
& Structure No. 97 Columbia Hgts., 113 Misc.2d 246,
247-248; Grimm, 60 Misc.2d at 582-583).
contrary to the Town's contention, it did not establish
that it was entitled to summary judgment based upon
plaintiff's alleged breach of the emergency snow removal
contract's "subletting" provision. The parties
agree that the "subletting" provision refers to
State Finance Law § 138 as well as General Municipal Law
§ 109. Section 138 "basically prohibits the
assignment or transfer of State-awarded contracts without
prior written consent from the State"
(Foster-Lipkins Corp. v State of New York, 84 A.D.2d
870, 871; see Matter of NANCO Envtl. Servs. v
Jorling, 172 A.D.2d 1, 5-6, lv denied 80 N.Y.2d
754), and section 109 prohibits the same for all other
municipal contracts (see e.g. Matter of Turnkey Constr.
Corp. v City of Peekskill, 51 A.D.2d 729, 729). The two
sections are "virtually identical" and are
"direct descendants of chapter 444 (§§ 1, 2)
of the Laws of 1897" (National Guardian Sec. Servs.
Corp. v City of New York, 218 A.D.2d 549, 550). If a
contractor violates, assigns, or transfers a publicly awarded
contract in violation of section 138 or section 109, the
State or other municipality, respectively, is discharged from
all liability under the contract (see § 109
; Penn York Constr. Corp. v State of New York, 92
A.D.2d 1087, 1088).
we conclude that the Town failed to meet its initial burden
on its motion because it did not establish, as a matter of
law, that it was entitled to be relieved of liability under
section 138 or section 109. Specifically, although it is
undisputed that plaintiff used at least seven subcontractors
in the course of its emergency snow removal work, the Town
failed to establish that it did not waive the remedies
available under section 138 or section 109. Indeed, the Town
submitted deposition testimony admitting that Town officials
had knowledge that plaintiff's subcontractors were
performing work and did not object. "A party may not,
with full knowledge of all the facts, have the benefit of
work done... by a sub-contractor without objection, and then
urge as an excuse for not paying for the same that the
sub-contractor was not consented to by him" (Ocorr
& Rugg Co. v City of Little Falls, 77 A.D. 592, 608,
affd 178 NY 622; see National Guardian Sec.
Servs. Corp., 218 A.D.2d at 550; Barr & Creelman
Co. v State of New York, 265 A.D. 893, 894). Moreover,
notwithstanding the waiver issue, a question of fact remains
concerning whether plaintiff's use of subcontractors to
perform a portion of the work violated the statutes (see
Ocorr & Rugg Co., 77 A.D. at 608-609; see also
Lane Constr. Co. v Winona Constr. Co., 49 A.D.2d 142,
147), and that question of fact precludes summary judgment in
favor of the Town.
we reject the Town's contention that it was permitted to
engage contractors other than plaintiff to perform emergency
snow removal work because its contract with plaintiff was
nonexclusive. A " contract must be interpreted so as to
give effect to, not nullify, its general or primary
purpose' " (Matter of El-Roh Realty Corp.,
74 A.D.3d 1796, 1799). In this case, the Town awarded a
contract for emergency snow removal to plaintiff, and the
Town's interpretation of the contract, ...