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Kiss Construction, Inc. v. Edison Electrical Contractors, Corp.

Supreme Court of New York, Second Department

July 12, 2017

Kiss Construction, Inc., plaintiff-respondent,
v.
Edison Electrical Contractors, Corp., appellant, New York City School Construction Authority, defendant-respondent, et al., defendant. Index No. 21021/12

          Pardalis & Nohavicka, LLP, Astoria, NY (Joseph D. Nohavicka and Ashley Serrano of counsel), for appellant.

          Ellenoff Grossman & Schole LLP, New York, NY (Anthony Gallano III and Glen A. Sproviero of counsel), for plaintiff-respondent.

          Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow and Dona B. Morris of counsel), for defendant-respondent.

          RUTH C. BALKIN, J.P. SHERI S. ROMAN SYLVIA O. HINDS-RADIX HECTOR D. LASALLE, JJ.

          DECISION & ORDER

         In an action, inter alia, to recover damages for breach of contract, the defendant Edison Electrical Contractors, Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Grays, J.), entered October 2, 2014, as granted those branches of the plaintiff's motion which were for summary judgment on the causes of action alleging breach of contract and on accounts stated and for summary judgment dismissing the counterclaim, and granted the cross motion of the defendant New York City School Construction Authority for summary judgment dismissing the cross claim for indemnification and contribution.

         ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

         The plaintiff commenced this action, inter alia, to recover damages for breach of contract against the defendant Edison Electrical Contractors, Corp. (hereinafter EEC), among others, alleging that it failed to pay the plaintiff in full for asbestos removal work performed by the plaintiff in two schools: IS93 and PS60. The plaintiff was a subcontractor for EEC, which had entered into contracts to perform electrical work for the defendant New York City School Construction Authority (hereinafter SCA).

         The Supreme Court properly awarded summary judgment in favor of the plaintiff on its causes of action against EEC alleging breach of contract. The plaintiff established its prima facie entitlement to judgment by showing the existence of a contract for both the IS93 and PS60 projects, the plaintiff's performance pursuant to the contract, EEC's breach of its contractual obligations, and damages resulting from the breach (see B & H Assoc. of NY, LLC v Fairley, 148 A.D.3d 1097; 143 Bergen St., LLC v Ruderman, 144 A.D.3d 1002, 1003). The partial payment of the invoices for the IS93 project constituted ratification of the adjusted proposal submitted by the plaintiff to EEC (see Matter of Edelstein v Greisman, 67 A.D.3d 796, 797; Mulitex USA, Inc. v Marvin Knitting Mills, Inc., 12 A.D.3d 169, 170). An implied-in-fact contract exists for the PS60 project, and a meeting of the minds as to the terms of that contract may be inferred from the parties' acts and words (see AMCAT Global, Inc. v Greater Binghamton Dev., LLC, 140 A.D.3d 1370, 1372).

         The plaintiff also established its prima facie entitlement to judgment as a matter of law on its causes of action on accounts stated by showing that EEC received and retained the plaintiff's invoices for both the IS93 and PS60 projects without objection within a reasonable period of time, and that EEC made partial payment on the accounts (see Joseph W. Ryan, Jr., P.C. v Faibish, 136 A.D.3d 984, 985; Mauro Lilling Naparty, LLP v Huang, 120 A.D.3d 1314, 1314). EEC failed to raise a triable issue of fact in opposition to the plaintiff's prima facie showing on either the breach of contract or accounts stated causes of action.

         The Supreme Court also properly granted SCA's cross motion for summary judgment dismissing EEC's cross claim for indemnification and contribution. SCA established its prima facie entitlement to judgment as a matter of law dismissing the cross claim by demonstrating that there is no provision in the contracts between SCA and EEC requiring SCA to indemnify EEC. Furthermore, SCA established, prima facie, that EEC was not entitled to common-law indemnification by demonstrating that SCA owed no duty directly to the plaintiff upon which such a claim could be based (see Waldorf Steel Fabricators v Trocom Constr. Corp., 244 A.D.2d 479, 480; Kemron Envtl. Servs. v Environmental Compliance, 184 A.D.2d 755, 755), and that the plaintiff's damages were not due solely to SCA's negligent performance or the nonperformance of an act solely within SCA's province (see Littleton v Amberland Owners, Inc., 94 A.D.3d 953, 954; Jaikran v Shoppers Jamaica, LLC, 85 A.D.3d 864, 866). Finally, SCA demonstrated, prima facie, that EEC was not entitled to contribution, as the plaintiff seeks damages for purely economic loss (see CPLR 1401; Eisman v Village of E. Hills, 2017 149 A.D.3d 806; Galvin Bros., Inc. v Town of Babylon, N.Y., 91 A.D.3d 715, 715). In opposition, EEC failed to raise a triable issue of fact.

         EEC's remaining contention, as to the dismissal of its ...


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