Argued-May 11, 2017
G. McCabe, Corporation Counsel, Long Beach, NY, for
Makris Plousadis & Seiden, LLP, Woodbury, NY (Gregory A.
Tsonis of counsel), for respondent-appellant.
REINALDO E. RIVERA, J.P. CHERYL E. CHAMBERS JOSEPH J. MALTESE
BETSY BARROS, JJ.
DECISION & ORDER
action, inter alia, to recover damages for breach of
contract, the defendant appeals from so much of an order of
the Supreme Court, Nassau County (Parga, J.), entered
February 24, 2015, as denied its cross motion for summary
judgment dismissing the causes of action to recover damages
for extra work and delay, and the plaintiff cross-appeals
from so much of the same order as denied its motion for
summary judgment dismissing the defendant's counterclaim
to recover damages for delay and portions of its counterclaim
for credits for work not performed.
that the order is modified, on the law, by deleting the
provision thereof denying that branch of the defendant's
cross motion which was for summary judgment dismissing the
plaintiffs cause of action to recover damages for extra work,
and substituting therefor a provision granting that branch of
the defendant's cross motion; as so modified, the order
is affirmed insofar as appealed and cross-appealed from,
without costs or disbursements.
plaintiff, Wenger Construction Co., Inc., and the defendant,
City of Long Beach, entered into a contract whereby the
plaintiff agreed to renovate a firehouse owned by the City.
The contract, among other things, required extra work to be
approved in writing, and contained a liquidated damages
clause assessing damages against the plaintiff at a daily
rate for every day the project remained incomplete after the
the plaintiff was given permission to proceed with the
project on October 28, 2008, and the contract required the
plaintiff to complete the project within 308 days, the City
was not able to occupy the firehouse until September 2010.
The plaintiff commenced this action to recover damages
resulting from, inter alia, the delay in completion of the
project allegedly caused by the City and for extra work it
alleged that the City requested and it performed, but for
which the City did not execute change orders. The City
counterclaimed, alleging, among other things, that the
plaintiff caused the delay in completion, and that the City
was entitled to credits for work not performed under the
contract and work performed negligently. The plaintiff moved
for summary judgment dismissing the City's counterclaim
to recover damages for delay and portions of its counterclaim
for credits for work not performed, and the City cross-moved
for summary judgment dismissing the causes of action to
recover damages for delay and extra work. The Supreme Court,
in an order entered February 24, 2015, denied the motion and
cross motion. On the appeal by the City and the cross appeal
by the plaintiff, we modify.
plaintiff alleged that, despite furnishing the City with
change orders for certain additional work performed at the
City's request, the City failed to execute those change
orders, thus damaging the plaintiff in the principal sum of
$72, 896.27. However, the contract provided that the City
could require extra work "at any time, and without
notice to the sureties, " and further provided that
"[a]ll extra work and material shall be ordered in
writing by [the City], and in no event shall any such work or
materials be paid for unless so ordered." Moreover,
Joseph Febrizio, the City's Assistant Commissioner for
the Department of Public Works, averred that over the course
of the project, the plaintiff submitted "as many as
thirty three change[ ]orders which were not requested or
agreed to, " and that he "was not aware of which of
those change orders make up the alleged $72, 896.27 in
alleged damages." Based upon the foregoing, the City
established its prima facie entitlement to judgment
dismissing the cause of action to recover damages for extra
work (see CNP Mech., Inc. v Allied Bldrs., Inc., 84
A.D.3d 1748, 1749; Naclerio Contracting Co. v Envtl.
Protection Admin, 113 A.D.2d 707, 709-710).
opposition, the plaintiff failed to raise a triable issue of
fact (see Zuckerman v City of New York, 49 N.Y.2d
557, 562). In his affidavit, David Wenger, the plaintiffs
president, averred only that the plaintiff "received
fifteen other approved change orders to perform work beyond
the scope of the original contract." However,
Wenger's affidavit did not discuss, and the plaintiff
failed to submit, any proof of the work allegedly requested
by the City that the plaintiff performed for which it
submitted change orders that the City failed to execute.
Additionally, the plaintiff offered no proof that the parties
waived the requirement that all extra work be approved in
writing (see CNP Mech., Inc. v Allied Bldrs., Inc.,
84 A.D.3d at 1749). Thus, the plaintiff failed to raise a
triable issue of fact as to whether the plaintiff performed
extra work that was requested by the City and for which the
plaintiff was not compensated (see Zuckerman v City of
New York, 49 N.Y.2d at 562; CNP Mech., Inc. v Allied
Bldrs., Inc., 84 A.D.3d at 1749; Naclerio Contr. Co.
v Envtl. Protection Admin., 113 A.D.2d at 709-710).
Accordingly, the Supreme Court should have granted that
branch of the City's cross motion which was for summary
judgment dismissing the cause of action to recover damages
for extra work.
Supreme Court properly denied the plaintiffs motion for
summary judgment dismissing the City's counterclaim to
recover damages for delay and portions of its counterclaim
for credits for work not performed. "[A] valid
contractual provision for liquidated damages controls the
rights of the parties in the event of a breach,
notwithstanding that the stipulated sum may be less than the
actual damages allegedly sustained by the injured party"
(X.L.O. Concrete Corp. v Brady & Co., 104 A.D.2d
181, 184, affd 66 N.Y.2d 970). Whether a liquidated
damages clause is an "enforceable liquidation of damages
or an unenforceable penalty is a question of law, giving due
consideration to the nature of the contract and the
circumstances" (JMD Holding Corp. v Congress Fin.
Corp., 4 N.Y.3d 373, 379). "The burden is on the
party seeking to avoid liquidated damages ... to show that
the stated liquidated damages are, in fact, a penalty"
(id. at 380). "Further, '[w]here the court has
sustained a liquidated damages clause the measure of damages
for a breach will be the sum in the clause, no more, no less.
If the clause is rejected as being a penalty, the recovery is
limited to actual damages proven" (id., quoting
Brecher v Laikin, 430 F.Supp 103, 106 [SD NY]).
the evidence submitted by the plaintiff in support of its
motion failed to establish, prima facie, that the plaintiff
was not liable under the contract to pay the City damages for
the plaintiff s delay in completion of the project or to give
the City credits for work not performed. Moreover, the
plaintiff s submissions failed to eliminate triable issues as
to the measure of damages. Despite the contract containing a
liquidated damages clause, the City's counterclaims do
not specify whether the City is seeking to enforce its
liquidated damages clause, seeking to recover actual damages,
or both. Moreover, after filing its counterclaims, the City
provided the plaintiff with a memorandum dated February 9,
2012 (hereinafter the credit memorandum), in which it claimed
that it was entitled to $1, 004, 310.10, which included both
various credits and damages for defective work, as well as a
credit for liquidated damages in the amount of $440, 000.
However, the damages claimed by the City in its counterclaims
appear to be unrelated to the damages claimed in the credit
memorandum. In fact, an additional affidavit submitted by
Febrizio suggested that the City was seeking to recover both
liquidated and actual damages. Therefore, the Supreme Court
correctly denied summary judgment dismissing the City's
counterclaim to recover damages for delay allegedly caused by
the plaintiff and portions of its counterclaim for credits
for work performed on the ground that triable issues of fact
the Supreme Court properly denied that branch of the
City's cross motion which was for summary judgment
dismissing the plaintiffs cause of action to recover damages
for delay allegedly caused by the City, as the City failed to
eliminate triable issues of fact as to whether the City or
the plaintiff caused the delays ...