Fourth Department affirms $400K judgment in contract dispute

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A state appeals court has affirmed a lower court ruling that awarded a payment of $439,499.76 in a contract dispute.

In April 2022, state Supreme Court Justice Timothy J. Walker, in Niagara County, ordered the payment to defendant Mark Cerrone Inc.

Cerrone, a general contractor, contracted with plaintiff Lardon Construction Corp. for Lardon to do site clearing work in connection with a landfill expansion project.

Lardon filed the lawsuit against Cerrone claiming breach of contract, and Lardon made various counterclaims and Walker issued a judgment awarding Cerrone $439,499.76, which Lardon appealed.

The judgment granted Cerrone’s motion for summary judgment dismissing Lardon’s complaint.

“Contrary to plaintiff’s contention, we conclude that defendants established on their motion that plaintiff’s clearing and grubbing work was contemplated within the subcontract and that, therefore, plaintiff is not entitled to extra costs in connection with such work,” the court wrote.

Lardon “failed to raise a triable issue of fact with respect to that issue,” the court wrote.

“There is no merit to plaintiff’s argument that it did not read or was unaware of the project specifications,” the court wrote.

“In any event, we further conclude, with respect to the issue of extra costs, that defendants established as a matter of law that plaintiff was obligated to seek compensation for the alleged extra work pursuant to the terms of the subcontract, which it failed to do in a timely manner,” according to the decision.

“If plaintiff believed that the clearing and grubbing work was a change to its contracted work, plaintiff could have requested a change order with respect to such work pursuant to the terms of the subcontract, which it did not do,” the court wrote.

“Contrary to plaintiff’s further contention, defendants established on their motion that plaintiff did not perform its screening work under the subcontract and is thus not entitled to recover lost profits in connection with such work. Plaintiff failed to raise a triable issue of fact in opposition in that respect, inasmuch as plaintiff’s president made only conclusory statements regarding the screening work in his opposing affidavit,” the court wrote.

“Finally, we conclude that Supreme Court properly granted that part of the motion with respect to defendants’ counterclaim for breach of contract. Contrary to plaintiff’s contention, defendants established that plaintiff breached the subcontract, and defendants further submitted admissible evidence of their costs, establishing the amount due pursuant to plaintiff’s breach,” the court wrote.

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