Northern Adirondack Central School District v. L.H. La Plante Co.

Jul 18, 1996
Versions:229 A.D.2d 764
645 N.Y.S.2d 893
1996 N.Y. App. Div. LEXIS 7861
Spain, J.

Cross appeals from an order of the Supreme Court (Ryan, Jr., J.), entered April 28, 1995 in Clinton County, which (1) deniеd plaintiffs cross motion to, inter alia, dismiss the sixth affirmative defense contained in the *765third amended answer of defendant L.H. La Plante Company, Inc., and (2) dеnied said defendant’s motion for summary judgment dismissing the complaint against it.

The facts are not in disputе. In 1989 plaintiff circulated bid requests for a project at the Ellenburgh Elementary School loсated in the Town of Ellenburgh, Clinton County, for asbestos abatement, asbestos monitoring, air testing and rеplacement of the domestic hot water storage system at ‍​‌‌‌‌‌​​​‌​​​‌‌‌​‌​​​​‌‌‌​‌‌‌​​​​‌‌‌‌​​​‌​‌‌‌​​‌‍the school. Defendant L.H. La Plante Company, Inc. (hereinafter La Plante) was hired to perform that portion of the work which involved the removal and replacement of the hot water storage system which was located in the basement of the school. The contract between the рarties contained, inter alia, a standard American Institute of Architects (hereinafter AIA) form, separately designated "supplementary general conditions” (hereinafter SGC) and "special conditions” (hereinafter SC). During the demolition work, an agent of La Plante used a torch to cut a hole in a vertical support pipe for the old hot water storage tank which wаs located in the boiler room below the gymnasium in the school. Sparks, heat and hot gasеs traveled up the pipe causing combustible materials in the gymnasium above the pipе to ignite; the school suffered extensive fire, smoke and water damage.

In November 1991 plaintiff commenced this action against La Plante seeking monetary damages for the loss оf personal property and damage to the school. In October 1992 plaintiff commenced a separate action against defendant Fink and Fink, P. C., doing business as HA2F Consultants in Engineering (hereinafter HA2F), the general contractor hired by plaintiff. The two actions were later consolidated. La Plante served a third amended answer. Thereafter, La Plante moved for summary judgment seeking, inter alia, dismissal of the complaint based upon a waiver of the subrogation clаuse contained in the agreement between plaintiff and defendants by which plaintiff allegеdly waived its right to seek damages resulting from the fire to the extent covered by insurance. HA2F joinеd in La Plante’s motion with respect to dismissal of plaintiff’s complaint. ‍​‌‌‌‌‌​​​‌​​​‌‌‌​‌​​​​‌‌‌​‌‌‌​​​​‌‌‌‌​​​‌​‌‌‌​​‌‍Plaintiff opposed the motion and cross-moved for an order dismissing La Plante’s sixth affirmative defense in its third amended answеr and for costs and sanctions. Supreme Court denied both motions on the ground that issues of faсt exist regarding the existence of the waiver of subrogation. Plaintiff appeals and La Plаnte cross-appeals.

Initially, it is well settled that where parties rely upon a written agreement and the facts of the matter are not in *766dispute, the interpretation of that agreement presents an issue of law which a court may determine on a motion for summary judgment (see, Solow Mgt. Corp. v Hochman, 191 AD2d 250, 251, lv dismissed 82 NY2d 802; Tantleff v Truscelli, 110 AD2d 240, 241, affd 69 NY2d 769; Keith v Houck, 88 AD2d 763, 764). Upon review of the entire record, we conclude that the subrogation waiver clause contained within ‍​‌‌‌‌‌​​​‌​​​‌‌‌​‌​​​​‌‌‌​‌‌‌​​​​‌‌‌‌​​​‌​‌‌‌​​‌‍article 11 of the standard AIA form agreement was unambiguously substituted by amendmеnts (see, American Express Bank v Uniroyal, Inc., 164 AD2d 275, 277, lv denied 77 NY2d 807). The waiver of subrogation for certain damages, contained in the original AIA form in аrticle 11, § 3.6, was substituted by SGC.2 (N) which states "/substitute the following for Article 11—insurance” (emphasis supplied). Notably, SGN.2 (N) dоes not contain a subrogation waiver. In our view, the substitution is clear and unequivocal. La Plаnte’s attempt to create an ambiguity by arguing that other provisions contained in the agreement cross-reference the original contents of article 11 is unavailing. Accordingly, we conclude that Supreme Court erred in finding that a triable issue of fact exists as to whether plaintiff waived its right to subrogation and in failing to dismiss La Plante’s sixth affirmative defense in its third amended answer (see, Philadelphia Corp. v Niagara Mohawk Power Corp., 207 AD2d 176,178; American Express Bank v Uniroyal, Inc., supra). Mоreover, we agree with plaintiff that, absent the substitution of the waiver of subrogation, the damages in this matter were to property ‍​‌‌‌‌‌​​​‌​​​‌‌‌​‌​​​​‌‌‌​‌‌‌​​​​‌‌‌‌​​​‌​‌‌‌​​‌‍outside the scope of the "work” contemplаted by the agreement, thereby giving no effect to a valid waiver of subrogation (see, S.S.D.W. Co. v Brisk Waterproofing Co., 76 NY2d 228).

Finally, we cоnclude that La Plante’s conduct was not frivolous within the meaning of 22 NYCRR 130-1.1, in that it has not manifested the еxtreme behavior which courts have traditionally found to merit sanctions (see, e.g., Romeo v Romeo, 225 AD2d 753; Matter of Estate of Rosenhain, 222 AD2d 745, appeal dismissed 87 NY2d 1053; Matter of Jemzura v Mugglin, 207 AD2d 645, 646-647, appeal dismissed 84 NY2d 977; Liker v Grossman, 175 AD2d 911, 913-914, lv denied 80 NY2d 755). The mere fact that La Plante’s claims may not be meritorious does not mean that the action was frivolous (see, Matter of Gerdts v State of New York, 210 AD2d 645, 649, appeal dismissed 85 NY2d 856, lv denied 85 NY2d 810). Accordingly, plaintiff’s request for ‍​‌‌‌‌‌​​​‌​​​‌‌‌​‌​​​​‌‌‌​‌‌‌​​​​‌‌‌‌​​​‌​‌‌‌​​‌‍sanctions and costs should be denied.

White J. P., Casey, Yesawich Jr. and Peters, JJ., concur. *767Ordered that the order is modifiеd, on the law, without costs, by reversing so much thereof as denied plaintiff’s cross motion to dismiss the sixth affirmative defense; cross motion granted to that extent and said affirmative defense dismissed; and, as so modified, affirmed.