This action arises out of a power sales contract entered into between plaintiff and defendant Niagara Mohawk Power Corporation on or about February 16, 1988, under the terms of which Niagara Mohawk agreed to purchase power generated by a plant to be constructed by plaintiff in the Town of Halfmoon, Saratoga County. Insofar as is relevant to this appeal, the contract required that the facility be operational by December 31, 1993, and Niagara Mohawk had the option of terminating the contract with plaintiff if this in-service deadline was not met. The contract further required that at least
Due to various delays, including difficulties in obtaining Public Service Law former article VIII certification from the New York State Board on Electric Generation Siting and the Environment (hereinafter the Siting Board), it became apparent that plaintiff was not going to be able to meet the December 31, 1993 in-service deadline.
Plaintiff thereafter commenced this action in March 1993 setting forth causes of action sounding in, inter alia, breach of contract. Niagara Mohawk answered and, along with the other named defendants, moved for summary judgment contending, inter alia, that plaintiff should be estopped from pursuing this action based upon certain representations it made before the Siting Board. Supreme Court dismissed plaintiff's ninth and eleventh causes of action based upon impossibility
Initially, we agree with plaintiff that Supreme Court erred in characterizing its fourth cause of action for breach of contract as one necessarily based upon waiver or estoppel. This particular cause of action plainly flows from Niagara Mohawk's termination of the agreement based upon plaintiff's purported failure to tender sufficient written proof of a firm fuel supply, as required under paragraph two of the parties' agreement. Hence, such cause of action is in no way tied to the in-service deadline set forth in paragraph three of the agreement and, therefore, is not subject to a waiver or estoppel analysis.
As to plaintiff's claim that it was not obligated under the terms of its agreement with Niagara Mohawk to tender such information in November 1992 (see, n 3, supra), we are of the view that the language contained in paragraph two of the parties' agreement concerning plaintiff's obligation to provide written evidence of a firm fuel supply 12 months prior to "the date of initial operation" of the facility unambiguously refers to the December 1993 in-service deadline. Hence, Niagara Mohawk was well within its rights to demand, in November 1992, that such information be supplied. We are also of the view, however, that unresolved factual issues exist with respect to the adequacy of plaintiff's response to this request for information and the reasonableness of Niagara Mohawk's termination of the agreement on this ground (see, Blask v Miller, 186 A.D.2d 958, 960;
Plaintiff next contends that Supreme Court erred in determining that it had tendered insufficient proof to raise a question of fact with respect to waiver and estoppel. We disagree. A "[w]aiver is an intentional relinquishment of a known right and should not be lightly presumed" (Frank Corp. v Federal Ins. Co., 70 N.Y.2d 966, 968). An estoppel, on the other hand, may be imposed by law in the interest of fairness where one party, justifiably relying upon the word or conduct of another, changes its position to its detriment (see, Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 184). Although the proof necessary to raise a question of fact in this regard is, of course, substantially less than that required to establish either waiver or estoppel as a matter of law, we must nevertheless conclude that the statements and conduct upon which plaintiff relies are far too conclusory and equivocal to defeat Niagara Mohawk's motion for summary judgment as to the remaining causes of action.
The evidence relied upon by plaintiff consists primarily of statements made by Niagara Mohawk representatives in a March 10, 1989 letter, at and after meetings held on August 6, 1990 and February 5, 1991, and in documents filed by Niagara Mohawk with the Public Service Commission. The March 10, 1989 letter, which Niagara Mohawk contends was sent to plaintiff by mistake and, indeed, contains certain factual errors regarding the contract approval date and the in-service deadline, established only "general guidelines" for setting milestones in power purchase contracts to which Niagara Mohawk was a party and, in our view, is insufficient to raise a question of fact as to either waiver or estoppel.
We reach a similar conclusion regarding the representations allegedly made by Niagara Mohawk senior vice-president Michael Ranalli at or after the August 6, 1990 and February 5, 1991 meetings between plaintiff and Niagara Mohawk representatives. According to plaintiff, Ranalli stated at the August 6, 1990 meeting that an extension of a few months would be "no problem" and reassured plaintiff following the February 5, 1991 meeting that Niagara Mohawk would continue to work with plaintiff. In our view, although the phrases "no problem" and "we'll work with you" evidence, as Supreme Court found and Niagara Mohawk apparently does not dispute,
Finally, plaintiff points to a quarterly report filed by Niagara Mohawk with the Public Service Commission in April 1991 indicating that the expected in-service date for the project was June 1, 1994. The mere fact that June 1, 1994 was listed as the projected in-service date at that particular point in time, however, is not sufficient to raise a question of fact as to whether a waiver actually occurred or an estoppel should be imposed. Plaintiff's remaining arguments on this point have been examined and found to be lacking in merit.
Accordingly, we are of the view that Niagara Mohawk's motion for summary judgment as to the remaining causes of action was properly granted. In light of this conclusion, we need not address the applicability of Public Service Law § 110 (4).
Ordered that the order is modified, on the law, without costs, by reversing so much thereof as granted defendants' motion dismissing plaintiff's fourth cause of action; said motion denied to that extent; and, as so modified, affirmed.