Clifford R. Gray, Inc., Respondent-Appellant, v LeChase Construction Services, LLC, et al., Appellants-Respondents.
Supreme Court, Appellate Division, Third Department, New York
2006
31 A.D.3d 983 | 819 N.Y.S.2d 182
Spain, J. Cross appeals (1) from an order of the Supreme Court (Kramer, J.), entered October 24, 2005 in Schenectady County which, inter alia, partially denied defendants’ motion to compel disclosure, and (2) from an order of said cоurt, entered January 26, 2006 in Schenectady County, which, inter alia, denied defendants’ motion for summary judgment dismissing the complaint.
Plaintiff is an electrical and communications contractor that has provided services to the Knolls Atomic Power Laboratory (herеinafter KAPL) for more than 40 years. Defendants are affiliated business entities from the City of Rochester, Monroe County, that were seeking to win a contract for the design and
Plaintiff‘s estimators traveled from Schenectady County to Rochester to meet with defendants’ design team in September 2001. During and subsequent to this meeting, information about the project and KAPL flowed mutually between the parties. Over the next few months, plaintiff submitted various bid proposals to defendants, who were ultimately awarded the contract. Notwithstanding the parties’ alleged oral agreement to use plaintiff as the exclusive subcontractor for the electrical and teledata portions of the contract, defendants put those aspects of the contract out to competitive bidding, and plaintiff was not awarded the subcontract that it claims was due under the exclusivity agreement. Plaintiff thereafter commenced this action, seeking damages for lost profits and other revenues it would have earned if it had been given the subcontract. Defendants moved for summаry judgment dismissing the complaint and plaintiff cross-moved for summary judgment on liability. Following oral argument, Supreme Court denied both
The complaint in this action asserts five causes of action, sounding in breach of contract, promissory estoppel, unjust enrichment, equitable estoppel and fraud. For the reasons that follow, we conclude that only the second cause of action, asserting promissory estoppel, survives defendant‘s motion for summary judgment.
Defendant contends that the exclusivity agreement is unenforceable as a matter of law, and we agree. “It is well settled that a contract must be definite in its material terms in order to be enforceable” (Spectrum Research Corp. v Interscience, Inc., 242 AD2d 810, 811 [1997]; see Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 482 [1989], cert denied 498 US 816 [1990]; Marraccini v Bertelsmann Music Group, 221 AD2d 95, 97 [1996], lv denied 89 NY2d 809 [1997]). Thus, an “agreement to agree, in which a material term is left for future negotiations, is unеnforceable” (see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 109 [1981]; Spectrum Research Corp. v Interscience, Inc., supra; Marraccini v Bertelsmann Music Group, supra; Bower v Atlis Sys., 182 AD2d 951, 952-953 [1992], lv denied 80 NY2d 758 [1992]). Viewing the exclusivity agreement as defined by plaintiff, the parties agreed that if plaintiff refrained from having contact with any other contractor that was seeking the project, and if defendant was awarded the prime contract, the parties would enter into a subcontract for the electrical and teledata work on the project. This is merely an agreement to later agree upon the “precise nature of the work to be subcontracted, price and manner of payment and time of performance” (Spectrum Research Corp. v Interscience, Inc., supra at 811).
Plaintiff‘s contention that the pricing information for the subcontract is ascertainable by reference to the proposals that plaintiff submitted to defendant does not satisfy the requirement thаt the material terms of the agreement be definite. While it is true that application of the definiteness doctrine is
Plaintiff correctly contеnds that it is possible to state a cause of action for fraud in the inducement separate and apart from a claim for breach of the contract (see Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954, 956 [1986]; Sabo v Delman, 3 NY2d 155, 162 [1957]). To the extent, however, that plaintiff‘s fifth cause of action may be construed as such, it must also be dismissed because there can be no viable claim for fraudulent inducement to enter an unenforceable contract (see Held v Kaufman, 91 NY2d 425, 431-432 [1998]).
Plaintiff‘s second cause of action asserts a claim sounding in promissory estoppel. A party rеlying upon promissory estoppel must demonstrate that there was a clear and unambiguous promise upon which it reasonably and detrimentally relied (see Bunkoff Gen. Contrs. v Dunham Elec., 300 AD2d 976, 978 [2002]; Fourth Branch Assoc. Mechanicville v Niagara Mohawk Power Corp., 235 AD2d 962, 964 [1997]; R. Freedman & Son v A.I. Credit Corp., 226 AD2d 1002, 1003 [1996]). Plaintiff has submitted evidence in admissible form that defendants promised to give plaintiff the project subcontract, and that plaintiff refrained from working with other general contractors who were seeking the project in reliance on that alleged but ultimately unfulfilled promise. Defendants submit evidence that they never promised plaintiff the subcontract, and that plaintiff did, in fact, seek to work with another general contractor who was pursuing the project. Clearly, the parties’ submissions create issues of material fact regarding whether defendant made the alleged promise and whether plaintiff reasonably relied thereon, and Supreme Court properly denied the motions for summary judgment on the promissory estoppel cause of action.
Plaintiff‘s fourth cause of action sounds in equitable estoppel. In support of the cause of action, plaintiff alleges facts similar to those underlying its promissory estoppel claim, along with allegations of the scienter that is an element to be established by a party sеeking equitable estoppel (see Michaels v Travelers Indem. Co., 257 AD2d 828, 829 [1999]; State Bank of Albany v Fioravanti, 70 AD2d 1011, 1012-1013 [1979], affd 51 NY2d 638 [1980]). The fundamental and fatal flaw in this cause of action is plaintiff‘s demand for money damages upon it; equitable estoppel is invoked to prohibit a party from engaging in certain conduct (see e.g. Matter of Hession v New York State & Local Employees’ Retirement Sys., 24 AD3d 1008, 1010 [2005] [the pеtitioner sought to equitably estop the respondent from denying tier 1 retirement status]; Doe v Holy See [State of Vatican City], 17 AD3d 793, 794-795 [2005], lv denied 6 NY3d 707 [2006] [the plaintiffs sought to estop the defendants from asserting statute of limitations defense]; Matter of Sarah S. v James T., 299 AD2d 785 [2002] [equitable estoppel invoked to prevent denial of paternity]; McKay v Healthcare Underwriters Mut. Ins. Co., 295 AD2d 686, 688 [2002], lv denied 99 NY2d 503 [2002] [equitable estоppel sought to prevent denial of insurance coverage]). Here, because plaintiff does not seek the type of remedy that would be available upon a successful invocation of equitable estoppel, the fourth cause of action should have been dismissed. To the extent that equity may provide plaintiff with a remedy in damages in this particular case, plaintiff‘s avenue of recovery rests on its promissory estoppel claim (see Bunkoff Gen. Contrs. v Dunham Elec., supra at 976-977).
Plaintiff‘s third cause of action genеrally alleges that defendant was unjustly enriched by plaintiff‘s experience with KAPL as well as plaintiff‘s direct contributions to defendant‘s successful proposal for the prime contract. A cause of action for unjust
Turning to defendant‘s appeal and plaintiff‘s cross appeal from Supreme Court‘s order addressed to defendant‘s discovery motion, it is well settled that the trial court has broad discretion in supervising discovery (see Bohlke v General Elec. Co., 27 AD3d 924 [2006]; Mora v RGB, Inc., 17 AD3d 849, 851 [2005]; Di Mascio v General Elec. Co., 307 AD2d 600, 601 [2003]). Upon our review of the record and supplemental record, we find that the order directing and conditioning plaintiff‘s disclosure of certain allegedly confidential information upon the execution of a cоurt-approved confidentiality agreement and denying other aspects of defendant‘s motion to compel disclosure was rendered well within the bounds of Supreme Court‘s discretion. Further, in the context of this protracted and contentious discovery dispute, we find no merit in defendant‘s contention that plaintiff waived its objections to defendant‘s demands for interrogatories.
Crew III, J.P., Peters, Lahtinen and Kane, JJ., concur. Ordered that the order entered October 24, 2005 is affirmed, without costs. Ordered that the order entеred January 26, 2006 is modified, on the law, without costs, by reversing so much thereof as