Opinion
July 12, 1990
Appeal from the Supreme Court, New York County (William J. Davis, J.).
Resettled order of said court, entered February 1, 1990 denying and granting the same relief as the prior order, and amending the caption of the consolidated action, unanimously modified, to the extent of reversing that portion which granted plaintiff's motion for consolidation and severing the actions, and otherwise affirmed, without costs.
Plaintiff commenced the first action against defendant American Home Assurance Company (American Home) and others to recover damages to its construction hoist occasioned by a fire which occurred on June 25, 1986 at 7 World Trade Center, New York County, a construction site. This court granted summary judgment dismissing the complaint as to American Home on plaintiff's claim for payment under an insurance policy. (Heydt Contr. Corp. v American Home Assur. Co., 146 A.D.2d 497 [1st Dept 1989].) In that action, plaintiff also alleged that defendants Seven World Trade Company (Seven World Trade) and Tishman Construction Corporation of New York (Tishman), the owner and construction manager at the site, negligently caused the fire which damaged plaintiff's hoist. It further alleged that the Home Indemnity Company had failed to pay plaintiff's claim, pursuant to a separate policy of insurance.
Plaintiff commenced a second action against defendants Seven World Trade and Tishman sounding in contract. Plaintiff alleged that, subsequent to the fire, defendants' representatives orally agreed to reimburse plaintiff for the cost of repairing or replacing the damaged hoist. It sought damages based on the oral agreement and, in the event no such agreement was found, recovery in quantum meruit.
Defendants moved in this second action for summary judgment on the ground that the alleged oral agreement was barred by provisions of a written contract providing that plaintiff bear the risk of loss of damage. However, a review of the provisions relied upon by defendants demonstrates that they do not refer to the loss occasioned herein. Rather, they relate to damage to defendants' property, to adjustments in the construction contract price and to damages resulting from "the execution of the work or occurring in connection therewith". Therefore, there is no merit to defendants' argument that the oral agreement alleged by plaintiff is barred by a provision in the written contract that the contract may be modified only by a writing. "[I]f the only proof of an alleged agreement to deviate from a written contract is the oral exchanges between the parties, the writing controls" (Rose v. Spa Realty Assocs., 42 N.Y.2d 338, 343). However, the oral agreement alleged by plaintiff neither changes nor modifies the written contract since the alleged oral agreement relates to issues not addressed in the contract. Therefore, there are triable issues of fact sufficient to defeat the defendants' motions for summary judgment. Furthermore, there is no bar to plaintiff's cause of action sounding in quantum meruit. Since the written agreement is silent as to the party which should bear the risk of loss, implied contract may be asserted by plaintiff in the event the oral agreement pleaded is not established.
The motion court, however, erred in granting plaintiff's motion for consolidation. (CPLR 602.) Plaintiff never specified, either on the motion or on this appeal, the commonality in issues of fact or law between the two actions. While the actions involve the same parties, this is not enough. Where one action sounds in negligence and the other in contract, it is inappropriate to grant consolidation. (Cf., Screen Gems-Columbia Music v. Hanson Publs., 42 A.D.2d 897 [1st Dept 1973], affd 35 N.Y.2d 885.) Moreover, the issues in the negligence action concern facts arising prior to and at the time of the fire, whereas the issues in the contract action relate to facts and circumstances developed thereafter.
Concur — Kupferman, J.P., Ross, Ellerin, Wallach and Smith, JJ.