SIEMENS INDUSTRY INC v. SKANSKA WALSH DESIGN BUILD JOINT VENTURE (2024)

DECISION & ORDER

In an action to recover damages for breach of contract, the defendant appeals from an amended order of the Supreme Court, Queens County (Joseph Risi, J.), dated June 1, 2023.  The amended order denied the defendant's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint.

ORDERED that the amended order is affirmed, with costs.

The defendant, Skanska Walsh Design–Build Joint Venture (hereinafter Skanska), was the design-build contractor for a project to renovate LaGuardia Airport.  Skanska subcontracted with the plaintiff, Siemens Industry, Inc. (hereinafter Siemens), for Siemens to furnish and install a building management system to control the heating, ventilation, and air conditioning systems.  Siemens commenced this action to recover damages for breach of contract, and sought payment, inter alia, for the impact of delays allegedly caused by Skanska's mismanagement of the project.  Skanska moved pursuant to CPLR 3211(a)(1) to dismiss the complaint, contending that change orders to the subcontract executed by Siemens precluded its recovery.  In an amended order dated June 1, 2023, the Supreme Court denied the motion.  Skanska appeals.

“A party is entitled to dismissal pursuant to CPLR 3211(a)(1) on the ground that a defense is founded on documentary evidence ‘only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law’ ” (Arnell Constr. Corp. v. New York City Sch. Constr. Auth., 186 A.D.3d 540, 541, 129 N.Y.S.3d 448, quoting Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190;  see S & J Serv. Ctr., Inc. v. Commerce Commercial Group, Inc., 178 A.D.3d 977, 978, 112 N.Y.S.3d 584).

Here, the affidavit submitted in support of Skanska's motion did not constitute documentary evidence (see Goldin Real Estate, LLC v. Shukla, 227 A.D.3d 674, 212 N.Y.S.3d 117).  Further, the other evidence submitted in support of Skanska's motion, that is, the change orders and subcontract, failed to utterly refute Siemens's factual assertion that it sought to recover impact damages under a separate sub-article of the subcontract (see Bonavita v. Government Empls. Ins. Co., 185 A.D.3d 892, 894, 127 N.Y.S.3d 577;  Arnell Constr. Corp. v. New York City Sch. Constr. Auth., 177 A.D.3d 595, 597, 112 N.Y.S.3d 169).

IANNACCI, J.P., CHAMBERS, MALTESE and WAN, JJ., concur.