Opinion
2003-03489.
Decided May 3, 2004.
In an action to recover damages pursuant to a public improvement contract, the defendant Nassau Land Improvement Co., Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated March 11, 2003, as granted that branch of the motion of the defendant Town of Babylon which was for summary judgment dismissing its second cross claim alleging breach of contract.
Tillim Shepardson, Melville, N.Y. (Malcolm L. Tillim and Allison M. Kourbage of counsel), for appellant.
Goldberg Connolly, Rockville Centre, N.Y. (Robert C. Buff and Burt P. Natkins of counsel), for respondent.
Before: HOWARD MILLER, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted that branch of the motion of the defendant Town of Babylon which was for summary judgment dismissing the appellant's second cross claim alleging breach of contract ( see Zuckerman v. City of New York, 49 N.Y.2d 557). Once the Town established its prima facie entitlement to judgment by demonstrating that the appellant agreed both orally and in writing to waive all claims against the Town for additional compensation in exchange for an extension of time to complete the improvement project, it became incumbent upon the appellant to establish, by admissible evidence, that a triable issue of fact existed. "A shadowy semblance of an issue or bald conclusory assertions, even if believable, are not enough to defeat a motion for summary judgment" ( Mlcoch v. Smith, 173 A.D.2d 443, 444). In response, the appellant failed to come forth with proof in evidentiary form tending to establish that its waiver was the result of economic duress ( see 805 Third Ave. Co. v. M.W. Realty Assoc., 58 N.Y.2d 447; Muller Constr. Co. v. New York Tel. Co., 40 N.Y.2d 955, 956; Austin Instrument v. Loral Corp., 29 N.Y.2d 124, 130; Matter of Hopkins v. Governale,222 A.D.2d 435, 436; Home City Sav. Bank v. Jamel Realty Corp., 186 A.D.2d 936; Midwood Dev. Corp. v. K 12th Assocs., 146 A.D.2d 754). Further, the appellant waived any claim of economic duress by its failure to promptly repudiate its waiver ( see Sheindlin v. Sheindlin, 88 A.D.2d 930, 931; Leader v. Dinkler Mgt. Corp., 26 A.D.2d 683, affd 20 N.Y.2d 393).
The appellant's remaining contentions are without merit.
H. MILLER, J.P., LUCIANO, SCHMIDT and TOWNES, JJ., concur.