- March 20, 2018
& Rossi, Brewster, NY (Nancy Tagliafierro and Sean Lewis
of counsel), for appellant.
Crowley, Sancimino & Kilgannon, LLP, Douglaston, NY
(Thomas J. Rossi and Sally Sancimino of counsel), for
C. DILLON, J.P. CHERYL E. CHAMBERS JOSEPH J. MALTESE BETSY
DECISION & ORDER
action, inter alia, to recover damages for breach of
contract, the defendant appeals from a judgment of the
Supreme Court, Putnam County (James T. Rooney, J.), entered
December 5, 2016. The judgment, upon an order of the same
court dated May 31, 2016, granting the plaintiffs motion for
summary judgment on the complaint, is in favor of the
plaintiff and against the defendant in the total sum of $381,
that the judgment is affirmed, with costs.
plaintiff and the defendant, the Town of Kent, entered into a
contract dated September 12, 2013, for the construction of a
sewer. By summons and verified complaint dated May 18, 2015,
the plaintiff commenced this action, alleging that the Town
failed to pay the plaintiff for extra work it performed that
was necessary to the performance of the contract and approved
by the Town's agent. The plaintiff moved for summary
judgment on the complaint, and by order dated May 31, 2016,
the Supreme Court granted the motion. The court entered a
judgment in favor of the plaintiff and against the Town in
the total sum of $381, 347.65. The Town appeals from the
contractor may recover payment for extra work performed at
the defendant's direction that is not contemplated by the
terms of the original agreement (see Arnell Constr. Corp.
v New York City Sch. Constr. Auth., 144 A.D.3d 714,
715-716; Ludemann Elec, Inc. v Dickran, 74 A.D.3d
1155, 1156; Hi-Amp Elec. Contr. Corp. v Maximum Mech.
Corp., 37 A.D.3d 541, 541-542). "'The ultimate
guide in determining whether or not the contractor is to be
paid for extra work is the contract itself"'
(Bilotta Constr. Corp. v Village of Mamaroneck, 199
A.D.2d 230, 231, quoting Savin Bros. v State of New
York, 62 A.D.2d 511, 515). When parties set down an
agreement in a clear, complete document, the writing should
be enforced according to its terms (see Arnell Constr.
Corp. v New York City Sch. Constr. Auth., 144 A.D.3d at
the plaintiff established, prima facie, that it performed
extra work at the defendant's direction that was not
contemplated by the terms of the parties' contract. The
plaintiff submitted the affidavit of its president and change
orders executed by the Town's engineer, which indicated
that the work resulted from conditions that were unexpected
and unanticipated. Further, the plaintiff established that it
performed the work at the direction of the Town's
engineer, and that the parties' contract gave the
Town's engineer the authority to ''decide all
questions which may arise as to the fulfillment of the
Contract on the part of the Contractor, and his decisions
thereon shall be final and conclusive," and to direct
the plaintiff in writing to perform extra work not otherwise
provided for by the contract. Accordingly, the plaintiff
established, prima facie, that it was entitled to payment for
the extra work it performed (see Hi-Amp Elec. Contr. Corp
v Maximum Mech. Corp., 37 A.D.3d at 541-542; cf.
Arnell Constr. Corp. v New York City Sch. Constr. Auth.,
144 A.D.3d at 716; Rapid Demolition Co., Inc. v State of
New York, 54 A.D.3d 921, 922).
opposition to the motion, the Town failed to raise a triable
issue of fact. We disagree with the Town's contention
that summary judgment was premature. A party contending that
a motion for summary judgment is premature is required to
demonstrate that additional discovery might lead to relevant
evidence or that the facts essential to oppose the motion are
exclusively within the knowledge and control of the movant
(see CPLR 3212[f]; Burlington Ins. Co. v Casur
Corp., 123 A.D.3d 965, 965-966). "The mere hope or
speculation that evidence sufficient to defeat a motion for
summary judgment may be uncovered during the discovery
process is insufficient to deny the motion" (Lopez v
WS Distrib., Inc., 34 A.D.3d 759, 760). Here, the Town
failed to show that discovery would lead to relevant
Town's remaining contentions are without merit.
we agree with the Supreme Court's granting of the
plaintiff's motion ...