Northway Engineering, Inc. v. Felix Industries, Inc.

160 A.D.2d 1133, 553 N.Y.S.2d 915, 1990 N.Y. App. Div. LEXIS 4379

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 19, 1990
• Status: Published

Opinions

Kane, J. P.

Appeal from an order and judgment of the Supreme Court (Williams, J.), entered March 21, 1989 in Sullivan County, which granted plaintiff’s motion for summary judgment.

Plaintiff was the mechanical subcontractor for the prime contractor, defendant Felix Industries, Inc. (hereinafter Felix), on a project known as the South Fallsburg Sewage Treatment Plant in the Town of Fallsburg, Sullivan County. In this action, plaintiff seeks to recover the balance allegedly due for work performed under the terms of its subcontract against both Felix and defendant Hartford Accident and Indemnity Company, surety on Felix’s performance and payment bond. In answering the complaints, defendants set forth denials and two counterclaims alleging breach of contract and negligence by plaintiff in the performance of its contractual duties. Plaintiff served a reply, notice to produce and a demand for a bill of particulars of the matters set forth in the counterclaims. Defendants failed to move with respect to the demand for the bill of particulars or otherwise respond to or provide the information requested in the demand (see, CPLR 3042 [a]). Thereafter, partial summary judgment was granted to plaintiff for a portion of the amount claimed to be due and payment of the amount of that judgment was made by or on behalf of defendants.

Thereafter, upon application of plaintiff, a 30-day conditional order of preclusion was entered against defendants for failure to respond to plaintiff’s demand for a bill of particulars. Defendants failed to comply with the provisions of the order of preclusion, whereupon plaintiff moved for summary judgment for the balance due. After receipt of answering papers, Supreme Court directed counsel and the principals of the corporations to appear before it, with all records, for the appropriate judicial inquiry. On the designated date, plaintiff complied and defendants appeared by counsel, but none of their principals appeared, nor did they produce any records, other than those set forth in the response to the motion for summary judgment. The court, noting that defendants failed to comply with appropriate discovery demands and that plaintiff had documented its entitlement to relief, granted plaintiff’s motion. After denial of their motion to reargue, this appeal by defendants ensued.

We affirm. We reject defendants’ contentions that there are remaining factual issues to be resolved and that Supreme Court erred in relying upon the preclusion order in its grant of summary judgment to plaintiff. The thrust of defendants’ argument is that the preclusion order related solely to matters alleged in the counterclaims, while the general denials in the answer to the complaint, standing alone, created questions of fact which remain unresolved. Moreover, defendants argue that these denials placed in issue matters upon which defendants did not bear the burden of proof, and, accordingly, were not required to furnish particulars thereof (see, Bounds v Mutual of Omaha Ins. Co., 37 AD2d 1008). However, we note that the counterclaims by defendants were, essentially, denials of plaintiff’s claim for money due and an assertion of defendants’ views of the amount in dispute under the terms of the contract. Accordingly, since defendants were precluded from presenting any proof concerning matters alleged in their counterclaims (see, Vecchiano v Greyhound Lines, 135 AD2d 708, lv denied 71 NY2d 803; Ervolina v City of Buffalo, 124 AD2d 998), and those matters were inextricably interwoven with the allegations of the complaint and present for resolution the same factual dispute upon which defendants’ defense rests, the motion was properly granted (cf., Glen Travel Plaza v Anderson Equip. Corp., 122 AD2d 327, 328).

Order and judgment affirmed, with costs. Kane, J. P., Casey and Levine, JJ., concur.