Termination notice was insufficient
By: Bennett Loudon//September 27, 2023
Termination notice was insufficient
By: Bennett Loudon//September 27, 2023//
A state appeals court has reversed a lower court and reinstated a lawsuit over a contract to remove snow.
In June 2022, state Supreme Court Justice Emilio Colaiacovo, in Erie County, granted a defense motion for summary judgment, dismissed the complaint, and denied the plaintiff’s cross-motion for summary judgment.
“It is hereby ordered that the order so appealed from is unanimously modified on the law by denying the motion, reinstating the complaint, and granting the cross-motion insofar as it sought damages under the contract,” the Appellate Division of state Supreme Court, Fourth Department, wrote.
Plaintiff Hausrath Landscape Maintenance Inc. filed the complaint seeking damages for breach of contract to perform snow removal services.
Defendant Caravan Facilities Management LLC moved for summary judgment dismissing the complaint, and Hausrath cross-moved for summary judgment on the complaint.
In one appeal, Hausrath appealed an order granting Caravan’s motion and denying Hausrath’s. Hausrath then moved to reargue its cross-motion and its opposition to defendant’s motion. In a second appeal, Hausrath appealed an order granting leave to reargue.
“Initially, we note that the appeal from the order in appeal No. 1 must be dismissed because the order in appeal No. 2 superseded the order in appeal No. 1,” the court wrote.
“On the merits, we agree with plaintiff that Supreme Court erred in determining that defendant established its entitlement to judgment as a matter of law dismissing the complaint,” according to the decision.
A written agreement that is “complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms,” the court wrote.
“In order to terminate the agreement for convenience, the plain language of the agreement required defendant “to send notice for the same to (plaintiff) by registered mail, return receipt requested, at any time, with minimum 30 days prior written notice,” the court wrote.
The termination for convenience provision also stated that “such termination for convenience shall not give rise to any … damages of any kind whatsoever.”
“It is undisputed that plaintiff received actual notice of defendant’s intent to terminate the agreement via email on Sept. 28, 2018, and that the notice stated that termination would be effective Oct. 1, 2018.”
The termination notice would not have led to damages if it provided the required 30-day notice.
“Defendant, however, failed to provide the requisite 30 days prior written notice of termination and instead provided two days prior written notice,” the court wrote.
The Fourth Department ruled that Caravan provided notice of termination as of Sept. 28, 2018, even though that notice was not sent by registered mail with return receipt requested. As a result, the effective date of termination was Oct. 28, 2018, not Oct. 1, 2018, and Hausrath is entitled to damages under the agreement accruing prior to the effective date.
“We further conclude that the court erred in granting the motion and properly denied the cross-motion with respect to consequential damages inasmuch as there are triable issues of fact whether plaintiff is entitled to such damages,” the court wrote.
“We therefore modify the order in appeal No. 2 by denying defendant’s motion, reinstating the complaint, and granting plaintiff’s cross-motion insofar as it sought payment of damages under the contract that accrued prior to termination on Oct. 28, 2018.”
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