‘SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ULSTER THE CITY OF KINGSTON, NEW YORK, Plaintiff, DECISION/ORDER -against- Index No. 1227-16 RJ.l. No, 55-16-1078 Richard Mott, J.S.C. ASLAN ENVIRONMENTAL SERVICES, LLC Defendant. ASLAN ENVIRONMENTAL SERVICES, LLC, Plaintiff, -against- Index No. 1730-16 ‘THE CITY OF KINGSTON, NEW YORK, Defendant. Motion Return Date: August 14, 2018 APPEARANCES: Christopher E. Buckey, Esq. Cullen & Dykman, LLP 99 Washington Avenue, Suite 2020 Albany, NY 12210 Defendant Bill Greenberg, LLP The Greenberg Law Firm, LLP 2929 Purchase Street Purchase, NY 10577 Mott, J Defendant, Aslan Environmental Services, LLG, (“Aslan”) moves for summaryJudgment pursuant to CPLR § 3212 and seeks an order 1) vacating the prior protective order issued by this Court on November 15, 2016 pursuant to CPLR § 3103, 2) granting Aslan summary judgment in the consolidated actions, 3) denying the City of Kingston’s ("City") motion for summary judgment in the consolidated actions and (4) dismissing the City's Counterclaims along with costs, disbursements and reasonable attorney fees. The City opposes and moves for summary judgment on its complaint and the dismissal of Aslan’s complaint and for attorney fees. Aslan opposes. Background In February 2004, the City issued a request for proposals (“RFP”) pursuant to General Municipal Law (GML) § 120-w. Aslan’s proposal was accepted and the parties entered into a Biosolid Equipment and Management Agreement (“Agreement”) in August, 2004. A year later, the Agreement was amended to extend the original ten-year term to fifteen years, resulting in a projected end date of December 31, 2020. Further, it provided an option for the City to purchase the equipment and terminate the Agreement. ‘The Agreement obligates Aslan to install, operate and maintain equipment to dry dewatered sewage sludge, a product of the City’s wastewater treatment facility (“WWTF") and convert it to fertilizer pellets or for other beneficial purposes, with profits for the City. The Agreement also provides that the defendant install, operate and maintain equipment to convert the methane gas by-product into electricity for the WWTF. In exchange, the City is obligated to pay a monthly fee, with abatements for interruption in service exceeding ten days, unless caused by force majeure, an Act of God or the City. Aslan maintains ownership of the equipment unless the City exercises its option to purchase the dryer-pelletizer 2system. While Aslan is responsible for “ordinary maintenance and normal repair” of the equipment at its expense, all replacement, “extraordinary maintenance and abnormal repair” must be conducted by Aslan and paid for first, by its insurance/casualty proceeds, and secondarily by the City's insurers with any excess amounts due to be paid by the City. ‘The sludge drying system began operation on April 20, 2007 and operated until the main shaft in the dryer-pelletizer unit failed on July 17, 2015, During the ensuing suspension of operation, the City's monthly payment was abated, Aslan received approximately $123,000.00 of the $125,000.00 cost for the replacement’s manufacture from its insurer. Aslan arranged for the replacement of the unique and complex shaft to resume the dryer-pelletizer process. Those arrangements included an evaluation to ascertain what was necessary to restart the sludge drying process and new design drawings and specifications for the manufacture of a new shaft. In early November 2015, Aslan hired Bamcor, an engineering firm, to design and manufacture a replacement shaft. Aslan continually advised the City of its progress and in March 17, 2016, engineers approved a redesigned replacement shaft based upon customized fabrication drawings and, thereafter, materials were ordered and work began on its manufacture. On April 11, 2016, Asian was notified by Bamcor that the replacement would be available for installation on May 12, 2016, On April 25, 2016, Asian notified the City, including the Mayor and Corporation Counsel that the replacement shaft would be installed on said date. Three days prior thereto, Asian received an email from the City's attorney advising them that the City had commenced legal action against it for breach of contract by service of a summons and complaint upon the Secretary 3