UTILITY SERVICES CONTRACTING INC PLAINTIFF RESPONDENT APPELLANT v. APPEAL NO (2011)

MEMORANDUM AND ORDER

Appeal and cross appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered August 4, 2010 in a breach of contract action.   The order denied in part the motion of defendant for summary judgment and denied plaintiff's cross motion for summary judgment.

It is hereby ORDERED that said appeal from the order insofar as it denied that part of defendant's motion for summary judgment dismissing the first cause of action to the extent that it sought consequential damages is unanimously dismissed and the order is modified on the law by granting those parts of defendant's motion for summary judgment dismissing the first cause of action except to the extent that it sought consequential damages and for summary judgment on the counterclaim in the amount of $108,000 plus prejudgment interest and as modified the order is affirmed without costs.

Contrary to plaintiff's contention on its cross appeal in appeal No. 1, the court properly granted those parts of defendant's motion for summary judgment dismissing the third cause of action, for promissory estoppel, and the fourth cause of action, for unjust enrichment.   We further conclude that plaintiff failed to establish that facts essential to justify opposition to the motion were in the exclusive possession of defendant (see Santangelo v. Fluor Constructors Intl., 266 A.D.2d 893).

Finally, we note that plaintiff abandoned any challenge to the order in appeal No. 2 inasmuch as it failed to raise any contentions with respect to the only part of the order by which plaintiff is aggrieved (see CPLR 5511), i.e., that part denying its request for costs and attorneys' fees associated with the motion (see Ciesinski v. Town of Aurora, 202 A.D.2d 984).

Frances E. Cafarell

Clerk of the Court