BURRSTONE ENERGY CENTER, LLC,PLAINTIFF-APPELLANT-RESPONDENT,V MEMORANDUM AND ORDERFAXTON-ST. LUKE’S HEALTHCARE,DEFENDANT-RESPONDENT-APPELLANT.HINCKLEY, ALLEN & SNYDER LLP, ALBANY (JAMES J. BARRIERE OF COUNSEL),FOR PLAINTIFF-APPELLANT-RESPONDENT.BOND, SCHOENECK & KING, PLLC, ALBANY (STUART F. KLEIN OF COUNSEL), FORDEFENDANT-RESPONDENT-APPELLANT.Appeal and cross appeal from an order of the Supreme Court,Oneida County (Patrick F. MacRae, J.), entered August 15, 2017. Theorder denied plaintiff’s motion for partial summary judgment on itsfifth cause of action and denied defendant’s cross motion for partialsummary judgment on that cause of action.It is hereby ORDERED that the order so appealed from isunanimously affirmed without costs.Memorandum: The parties entered into an “Energy ServicesAgreement” (Agreement) pursuant to which plaintiff would finance andconstruct a combined heat and power facility (CHPF) on defendant’sproperty in exchange for defendant’s promise to purchase all of itsthermal energy requirements from plaintiff unless, “when operating atfull capacity, the CHPF [did] not produce sufficient Thermal Energy tomeet all [of defendant's energy] requirements.”In the event that theCHPF did not produce sufficient Thermal Energy, defendant would bepermitted to use its own boilers “to supplement the production anddelivery of Thermal Energy so as to meet the one hundred percent(100%) Thermal Energy requirement.” Several years after the CHPFbegan operating, plaintiff commenced the instant action for breach ofcontract and judgment declaring that defendant is obligated under theAgreement to purchase 100% of its thermal energy requirements fromplaintiff. Plaintiff moved for partial summary judgment on its fifthcause of action, seeking a declaration, and defendant cross-moved forpartial summary judgment on that cause of action. Supreme Courtdenied the motion and cross motion, and we affirm.Initially, we agree with plaintiff that the court erred indetermining that it was precluded from issuing a declaration. Themere existence of another adequate remedy does not preclude a courtfrom issuing a declaration (seeMatter of Morgenthau v Erlbaum, 59NY2d 143, 148 [1983],cert denied464 US 993 [1983];County of Monroev Clough Harbour & Assoc., LLP, 154 AD3d 1281, 1282 [4th Dept 2017];seegenerallyCPLR 3001). Where, as here, the parties have differinginterpretations of their obligations under a contract and the contractdoes not “delineate[] the agreed procedure to be followed forresolving disputes arising [between the parties]” (Kalisch-Jarcho,Inc. v City of New York, 72 NY2d 727, 732 [1988]),a cause of actionfor declaratory relief “may be an appropriate vehicle for settlingjusticiable disputes as to contract rights and obligations” (id.at731).We nonetheless conclude that the court properly denied the motionand cross motion because the parties’ Agreement is not clear andunambiguous (see generally MHR Capital Partners LP v Presstek, Inc.,12 NY3d 640, 645 [2009];Colella v Colella, 129 AD3d 1650, 1651 [4thDept 2015]). The Agreement provides that “[t]he Parties acknowledgeand understand that when operating at full capacity, the CHPF maynevertheless not produce sufficient Thermal Energy to meet allrequirements.” That provision may be interpreted, as plaintiffcontends, as requiring defendant to purchase all of the thermal energyproduced by the CHPF, regardless of whether defendant can distributethat energy. The provision also may be interpreted, as defendantcontends, as permitting defendant to use its own boilers when the CHPFis incapable of meeting 100% of its thermal energy requirements, whichis often because defendant’s thermal energy distribution system cannotaccommodate all forms of thermal energy produced by the CHPF.Inasmuch as it is not clear whether the parties were aware of thelimitations of defendant’s hot water thermal energy distributioncapabilities when they entered the Agreement “for the sale [fromplaintiff] to [defendant] of all the [hospital's] . . . Thermal Energyrequirements,”both the motion and cross motion were properly denied.Entered: June 8, 2018 Mark W. BennettClerk of the Court
