Metropolitan Steel Industries, Inc. v. Perini Corp.

OPINION OF THE COURT

Buckley, J.

At issue on this appeal is one work order, denominated X-32A, arising out of a construction project, and the applicability of the law of the case doctrine. Defendant Perini Corporation (Perini), the prime contractor on the project, hired plaintiff Metropolitan Steel Industries, Inc. (Steelco) as a subcontractor. Both the prime contract and the subcontract contained a no-damage-for-delay clause, which precluded Steelco from obtaining extra compensation for delays in the project unless specifically allowed by the owner. Steelco began work, but was terminated by Perini before completing its subcontract, and therefore commenced this action to recover the balance on the subcontract, a 5% retainage, and damages for extra work based on 27 outstanding change work orders.

Defendants, Perini and its sureties, moved for partial summary judgment to dismiss the claims for delay damages, as barred by the no-damage-for-delay clauses of the prime contract and subcontract. Perini argued that the 27 change order proposals listed in the complaint fell into two categories: (1) change orders for additional work, and (2) change orders regarding delays. Perini’s motion papers stated:

“Due to Steelco’s failure to provide discovery regarding a full, accurate and complete accounting of its claims, it cannot be precisely determined which of the 27 outstanding change order proposals represent Steelco’s claims for delay damages. As best Perini can assess, Change Order Proposal Nos. X-22A, X-23, X-28A, X-29, X-31A, X-32A, X-37, X-43, X-44, X-45 and X-47 represent Steelco’s claims for delay damages.”

Thus, Perini took the position that at least 11 of the 27 change order proposals represented claims for delay damages, and *230specifically enumerated the 11 change orders it was able to identify as pursuing delay damages. In opposition, Steelco argued only that the contracts did not contain a no-damage-for-delay clause, and even if they did, there were issues of fact whether such provisions were enforceable; nowhere did Steelco challenge Perini’s characterization of the 11 identified order proposals as delay claims.

Supreme Court (Herman Cahn, J.) granted Perini’s motion to dismiss the claims for delay damages. Cognizant of Perini’s contention that possibly more than the 11 specified claims were for delay damages, Justice Cahn noted that “approximately 11 [of the claims] are for alleged delay damages” (2004 NY Slip Op 30157[U], *5). The dissent essentially argues that, because the order did not expressly list the dismissed claims, and because it used the terms “approximately” and “alleged,” Supreme Court offered merely a theoretical, advisory opinion, that decided nothing concrete. Any ambiguity was removed when Steelco asserted, for the first time in its motion for reargument or renewal, that 4 of the 11 work proposals listed in Perini’s summary judgment motion (X-28A, X-29, X-31 A and X-371) were not for delay damages, but rather for increased costs caused by Perini. The motion for reargument/renewal expressly conceded that another 4 of the 11 proposals (X-43, X-44, X-45 and X-47) did seek delay damages. The dissent points out that Steelco did not explicitly mention work proposals X-22A, X-23 or X-32A, the remaining 3 of the 11 proposals set forth in the original motion.' However, all of the work proposals discussed in Steelco’s motion for reargument or renewal were among the 11 argued in Perini’s original motion. Thus, Steelco evinced its understanding that Perini had argued that the 11 identified proposals were for delay damages. Justice Cahn denied reargument and renewal (2005 NY Slip Op 30155[U]). Subsequently, this Court affirmed Justice Cahn’s orders (Metropolitan Steel Indus., Inc. v Perini Corp., 23 AD3d 205 [2005]).

Thereafter, the parties proceeded to trial before a different Justice. At the outset of trial, the parties contested whether Steelco should be permitted to include work orders X-22A and X-23, in light of Justice Cahn’s orders; no mention was made of *231order X-32A. The trial court informed Steelco: “it is your opening and it’s your trial. I will let you use it.” Steelco was permitted to present evidence on all three work orders. During the charge conference, the issue arose again, but the trial court ruled: “As far as what was subsumed under Judge Cahn’s . . . decision, I don’t know what he did or not. It seems to me we can resolve that after the verdict.” The jury returned a verdict in Steelco’s favor on those three claims, as well as other claims, and Perini moved, inter alia, to set aside the verdict on those three claims on the ground that they had previously been dismissed by Justice Cahn. The trial court denied the motion, on the ground that Justice Cahn’s orders had not explicitly recited that he was dismissing the three claims, but directed that Perini could “seek clarification” of those orders by moving before Justice Cahn (2006 NY Slip Op 30253[U], *9).

In conformity with the trial court’s instructions, Perini moved before Justice Cahn for clarification whether his prior orders had dismissed claims X-22A, X-23 and X-32A. While that motion was pending, the parties appealed an order disposing of certain post-trial motions. Among the arguments raised on appeal was that Justice Cahn’s orders had dismissed claims X-22A and X-23. Notwithstanding the absence of a specific reference to those claims in Justice Cahn’s prior orders, an absence which the dissent in the instant appeal finds significant, this Court held: “Defendants are correct that the introduction of claims X-22A and X-23 in evidence was error insofar as those estimates constituted delay claims previously dismissed in an order affirmed by this Court (23 AD3d 205 [2005]), and those claims are hereby rejected” (Metropolitan Steel Indus., Inc. v Perini Corp., 36 AD3d 568, 570 [2007]). Shortly thereafter, Justice Cahn rendered a decision on the clarification motion. If any doubts lingered, Justice Cahn, the one most familiar with his own prior rulings,2 unequivocally held that his two prior orders had dismissed as delay claims “the 11 Steelco claims identified by Perini as delay claims,” including “claims X-22A, X-23 and X-32A” (2007 NY Slip Op 34374[U], *8). Justice Cahn added: “Accordingly, [Perini’s] motion is granted, and an order will be issued modifying the Dismissal Order by clarifying that Steelco claims X-22A, X-23 and X-32A were part of the 11 Steelco delay *232claims that were previously dismissed” (id. at *9).3 ****8 The fact that Justice Cahn “note[d]” (id.) the second appeal (discussing claims X-22A and X-23) does not mean, as the dissent suggests, that Justice Cahn looked to this Court to ascertain what he himself had directed in his prior orders.

Since Justice Cahn dismissed claim X-32A in the original order, and adhered to that decision on reargument/renewal, his ruling became binding on the trial judge, a judge of coordinate jurisdiction (see Gee Tai Chong Realty Corp. v GA Ins. Co. of N.Y., 283 AD2d 295, 296 [2001]). The dissent acknowledges the principle of the law of the case, but would allow the parties to do what the judge cannot: “waive,” i.e., disregard, an order of another judge of coordinate jurisdiction in the course of earlier proceedings. However, the doctrine applies equally to the parties (see id.).

Accordingly, the order of the Supreme Court, New York County (Herman Cahn, J.), entered February 16, 2007, which granted defendants’ motion for an order finding that plaintiffs claim identified as X-32A had been dismissed pursüant to an order of the same court and Justice entered December 1, 2004, should be affirmed, with costs.

. Although Steelco’s motion papers refer to X-28, rather than X-28A, the complaint alleges a claim based only on X-28A, and makes no mention of an X-28; thus, Steelco could only have been referring to X-28A. Indeed, Steelco made a similar typographical error in its reargument/renewal motion papers, in which it interchangeably discussed an X-31, which does not appear in the complaint, and X-31 A.

. The dissent’s deus ex machina is thus a non sequitur.

. The dissent finds confusion in the final paragraph of the clarification order, in which Justice Cahn specifically lists only 10 delay claims, inadvertently omitting work order X-47 from the list of 11 claims that had been identified by Perini and dismissed by his prior orders. Confusion can only be obtained by ignoring Justice Cahn’s clear and repeated statements that Perini had identified 11 work orders as seeking delay claims, and that all 11 had been dismissed on that basis. Furthermore, the dissent does not explain how a proofreading failure concerning claim X-47 can cast doubt on Justice Cahn’s explicit ruling, restated several times, that claim X-32A, the claim at issue on this appeal, had been dismissed.