DOMMER CONSTRUCTION CORPORATION v. SAVARINO CONSTRUCTION SERVICES CORP ( 2011 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    761.1
    CA 10-02058
    PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.
    DOMMER CONSTRUCTION CORPORATION,
    PLAINTIFF-APPELLANT,
    V                               MEMORANDUM AND ORDER
    SAVARINO CONSTRUCTION SERVICES CORP.,
    AND THE CINCINNATI INSURANCE COMPANY,
    DEFENDANTS-RESPONDENTS.
    DAMON MOREY LLP, BUFFALO (ERIC A. BLOOM OF COUNSEL), FOR
    PLAINTIFF-APPELLANT.
    WESTERMANN SHEEHY KEENAN SAMAAN & AYDELOTT, LLP, UNIONDALE (CAROLYN K.
    FIORELLO OF COUNSEL), FOR DEFENDANT-RESPONDENT THE CINCINNATI
    INSURANCE COMPANY.
    LAW OFFICE OF RALPH C. LORIGO, WEST SENECA (RALPH C. LORIGO OF
    COUNSEL), FOR DEFENDANT-RESPONDENT SAVARINO CONSTRUCTION SERVICES
    CORP.
    Appeal from a judgment of the Supreme Court,   Niagara County
    (Richard C. Kloch, Sr., A.J.), entered January 5,   2010. The judgment
    granted defendants’ motions for summary judgment,   dismissed the
    complaint and denied plaintiff’s cross motion for   summary judgment.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed without costs.
    Memorandum: Defendant Savarino Construction Services Corp.
    (Savarino) contracted with Niagara Falls Memorial Medical Center
    (Medical Center) to construct a new emergency room and heart center
    (Project) at the Medical Center. Defendant The Cincinnati Insurance
    Company issued a payment bond to Savarino, and Savarino subcontracted
    with plaintiff to perform an extensive portion of the construction.
    After completing its work on the Project, one of the officers of
    plaintiff corporation signed a conditional interim waiver of lien and
    claim (Release). Pursuant to the terms of the Release, plaintiff
    waived, released and relinquished “any and all claims, demands and
    rights of lien to the extent of the amount shown hereon and previously
    paid, for all work, labor materials, machinery or other goods,
    equipment or services done, performed or furnished for the
    construction located at the [P]roject.” Plaintiff accepted payment of
    the amounts set forth in the Release, but thereafter commenced this
    action seeking payment for overtime and extra work allegedly not
    -2-                           761.1
    CA 10-02058
    encompassed by the terms of the Release.
    Defendants each moved for summary judgment dismissing the
    complaint, contending, inter alia, that the Release barred plaintiff’s
    complaint, and plaintiff cross-moved for, inter alia, summary judgment
    on the complaint. Supreme Court initially denied the motions and
    cross motion on the ground that there were triable issues of fact
    requiring a trial, but the parties thereafter stipulated to permit the
    court to rule on all issues of fact and law based on the papers before
    it. We conclude that the court properly granted defendants’ motions
    and dismissed the complaint.
    It is well settled that “a general release is governed by
    principles of contract law” (Mangini v McClurg, 24 NY2d 556, 562; see
    Litvinov v Hudson, 74 AD3d 1884, 1885; Kaminsky v Gamache, 298 AD2d
    361, 361) and that, where “a release is unambiguous, the intent of the
    parties must be ascertained from the plain language of the agreement”
    (Kaminsky, 298 AD2d at 361). Here, according to the unambiguous
    language of the Release, plaintiff waived, released and relinquished
    any and all claims and demands for, inter alia, all work, materials
    and services performed on the Project, and thus “the fact that
    [plaintiff] may have intended something else is irrelevant” (Booth v
    
    3669 Del., 242
     AD2d 921, 922, affd 92 NY2d 934 [internal quotation
    marks omitted]). The Release, on its face, constitutes a complete bar
    to any action on the subcontract between plaintiff and Savarino (see
    Diontech Consulting, Inc. v New York City Hous. Auth., 78 AD3d 527,
    528; Littman v Magee, 54 AD3d 14, 17). “Although a party may, by its
    conduct, implicitly recognize that a right to additional payment has
    not been extinguished by the release[] in question . . ., there is
    simply no course of conduct here that could conceivably be construed
    as an acknowledgment by [defendants] of plaintiff’s right to further
    payment,” particularly in view of the fact that plaintiff’s officer
    signed the Release after the applications for the additional payment
    sought in this action had been submitted (Diontech Consulting, Inc.,
    78 AD3d at 528). There is no support in the record for plaintiff’s
    contention that the overtime and extra work were performed pursuant to
    separate and distinct contracts with Savarino.
    Entered:   June 10, 2011                        Patricia L. Morgan
    Clerk of the Court
    

Document Info

Docket Number: CA 10-02058

Filed Date: 6/10/2011

Precedential Status: Precedential

Modified Date: 10/8/2016