Zaepfel v. Town of Tonawanda

211 N.Y.S.3d 638

227 A.D.3d 1387

James A. ZAEPFEL, Tonawanda Pirson LLC, and 95 Pirson Parkway LLC, Plaintiffs-Respondents,

v.TOWN OF TONAWANDA, Defendant-Appellant. (Appeal No. 2.)

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: May 3, 2024

Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (Emilio Colaiacovo, J.), entered February 16, 2023. The order and judgment, among other things, awarded plaintiffs the sum of $1,664,801.48 as against defendant, upon a jury verdict.

COLUCCI & GALLAHER, P.C., BUFFALO (PAUL G. JOYCE OF COUNSEL), FOR DEFENDANT-APPELLANT.

GROSS SHUMAN P.C., BUFFALO (B. KEVIN BURKE, JR, OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.

PRESENT: LINDLEY, J.P, MONTOUR, OGDEN, AND GREENWOOD, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order and judgment so appealed from is unanimously modified on the law by granting the posttrial motion in part, setting aside the verdict with respect to the third cause of action insofar as it is based on defendant’s failure to construct a retention pond and a new trial is granted on the third cause of action to that extent, and setting aside the verdict with respect to damages on the first cause of action, and as modified the order and judgment is affirmed without costs and a new trial is granted on damages only with respect to the first cause of action unless plaintiffs, within 20 days of service of a copy of the order of this Court with notice of entry, stipulate to reduce the award of damages for the first cause of action to $10,100, in which event the order and judgment is modified ac- cordingly and as modified the judgment is affirmed without costs.

Memorandum: Plaintiffs commenced this action asserting six causes of action arising out of defendant’s sale of vacant land (property) to plaintiff Tonawanda Pirson, LLC (Pirson), which constructed a commerce center on the site. As relevant to this appeal, the first cause of action (billboard claim) asserts that defendant committed the tort of conversion when it retained a post-closing rent check from a company that leased part of the property for purposes of erecting a billboard. The second cause of action (wetlands claim) asserts that, as a condition precedent to the land purchase contract (contract), defendant and Pirson agreed to jointly apply for and obtain any necessary permits from the Army Corp of Engineers (ACE). ACE issued the permit but required the permittees to create or finance several acres of replacement wetlands, representing twice the acreage that would be displaced by the commerce center project. Plaintiffs allege that they constructed defendant’s share of the replacement wetlands to comply with the ACE permit and that defendant did not pay plaintiffs’ invoice for their expenses with respect thereto, thereby breaching the contract. The third cause of action (improvements claim) asserts, inter alia, that defendant promised to construct, on adjacent land retained by defendant, a storm water retention pond (retention pond) that would service the property. It is undisputed that defendant’s purported promise was never expressly memorialized in the contract. Plaintiffs allege that defendant breached the contract by failing to construct a retention pond and that plaintiffs were therefore required to construct one on the property at their expense.

Defendant moved for summary judgment dismissing the complaint. Supreme Court granted the motion with respect to the fourth through sixth causes of action but denied the motion with respect to the first, second, and third causes of action, concluding that the billboard and wetlands claims were not barred by the statute of limitations or the statute of frauds and that the improvements claim was not barred by the merger doctrine, At trial, the jury determined that defendant was liable for conversion under the billboard claim and awarded plaintiffs $15,550 in compensatory damages. It further determined that defendant was liable under the wetlands claim and awarded plaintiffs $226,500 in compensatory damages. The jury also found defendant liable under the improvements claim and, as relevant on appeal, awarded plaintiffs $748,217.10 for the retention pond. Thereafter, defendant moved to set aside the jury verdict (posttrial motion) on the ground that the verdict was against the weight of the evidence, requiring a new trial, or, in the alternative, to set aside or reduce the award of damages. The court denied the posttrial motion and issued an order and judgment (judgment) in favor of plaintiffs. In appeal No. 1, defendant appeals from the order denying its posttrial motion. In appeal No. 2, defendant appeals from the judgment awarding money damages to plaintiffs.

[1–3] As an initial matter, we note that the appeal from the order in appeal No. 1 must be dismissed inasmuch as the order in that appeal is subsumed in the judgment in appeal No. 2 (see Striking v. Wendel & Loecher, Inc. [appeal No. 2], 194 A.D.3d 1390, 1390-1391, 148 N.Y.S.3d 302 [4th Dept. 2021]). The appeal from the judgment in appeal No. 2 brings up for review the propriety of the order in appeal No. 1 (see Almuganahi v. Gonzalez, 174 A.D.3d 1492, 1493, 107 N.Y.S.3d 506 [4th Dept. 2019]; see generally CPLR 5501 [a] [1]; Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 [1976]). The appeal from the judgment in appeal No. 2 does not bring up for review the propriety of that part of the court’s order denying defendant’s motion insofar as it sought summary judgment dismissing the improvements claim: the denial of that part of the motion did not necessarily affect the final judgment inasmuch as it did not deprive defendant of the further opportunity to litigate the issue in question, i.e., defendant’s contention that there was no breach of contract with respect to the improvements claim (see Bonczar v. American Multi-Cinema, Inc., 38 N.Y.3d 1023, 1025-1026, 168 N.Y.S.3d 711, 188 N.E.3d 1000 [2022], rearg denied 38 N.Y.3d 1170, 174 N.Y.S.3d 692, 195 N.E.3d 526 [2022]; see generally CPLR 5501 [a] [1]). The appeal from the judgment in appeal No. 2 does bring up for review the propriety of that part of the court’s order denying defendant’s motion insofar as it sought summary judgment dismissing the billboard and wetlands claims. Denial of the motion with respect to those two claims—which was in effect a motion for dismissal under CPLR 3211 (a) (5)—necessarily affected the final judgment by "necessarily removing] … legal issue[s] from the case so that there was no further opportunity during the litigation to raise the question[s] decided by the prior non-final order" (Bonczar, 38 N.Y.3d at 1026, 168 N.Y.S.3d 711, 188 N.E.3d 1000 [internal quotation marks omitted]; see Costea v. Yemen Mgt. Corp., 213 A.D.3d 634, 636, 183 N.Y.S.3d 497 [2d Dept. 2023]). Specifically, the court determined that those two claims were timely and that the wetlands claim was not barred by the statute of frauds.

[4–6] Contrary to defendant’s contention, we conclude that the court properly denied defendant’s motion insofar as it sought summary judgment dismissing the billboard claim on the ground that it was barred by the applicable statute of limitations (see General Municipal Law § 50-i [1]). The billboard claim sounds in conversion and therefore "accrue[d] on the date the conversion [took] place" (Morrow v. Brighthouse Life Ins. Co. of NY, 200 A.D.3d 1622, 1624, 161 N.Y.S.3d 604 [4th Dept. 2021]), not upon "discovery or the exercise of diligence to discover" (Vigilant Ins. Co. of Am. v. Housing Auth. of City of El Paso, Tex., 87 N.Y.2d 36, 44, 637 N.Y.S.2d 342, 660 N.E.2d 1121 [1995]). "A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession" (Colavito v. New York Organ Donor Network, Inc., 8 N.Y.3d 43, 49-50, 827 N.Y.S.2d 96, 860 N.E.2d 713 [2006]). In arguing that the billboard claim is barred by the statute of limitations, defendant relies solely on the allegations in the complaint in support of its assertion that the claim accrued when defendant received the rent check for the billboard in January 2015, rendering the November 2016 commencement of this action untimely. The mere fact that defendant accepted the rental funds in January 2015 does not, however, establish that defendant had the requisite intent, at that time, to convert plaintiffs’ property (see generally DiMatteo v. Cosentino, 71 A.D.3d 1430, 1431, 896 N.Y.S.2d 778 [4th Dept. 2010]). Consequently, we conclude that defendant did not meet its initial burden on the motion (see Larkin v. Rochester Hous. Auth., 81 A.D.3d 1354, 1355, 916 N.Y.S.2d 694 [4th Dept. 2011]; see generally Baker v. Eastern Niagara Hosp. Inc., 217 A.D.3d 1331, 1332, 191 N.Y.S.3d 566 [4th Dept. 2023]; Chaplin v. Tompkins, 173 A.D.3d 1661, 1662, 103 N.Y.S.3d 713 [4th Dept. 2019]). Thus, the burden never shifted to plaintiffs to aver evidentiary facts establishing that the limitations peri-...