Fiorenza v A & A Consulting Engrs., P.C.
Annotate this CaseDecided on June 16, 2009
Supreme Court, Bronx County
Maria Fiorenza, Plaintiff,
against
A & A Consulting Engineers, P.C. and S. Ainechi, P.E., Defendants.
25444/04
Attorney for Plaintiff: Maria C. Corrao, Esq.
Attorney for Defendant: Daniel A. McFaul, Jr., Esq.
Alexander W. Hunter, J.
The motion by defendant A & A Consulting Engineers, P.C. for summary
judgment dismissing plaintiff's complaint, is granted.
The cause of action is for damages incurred by plaintiff when defendant A & A
Consulting Engineers, P.C. ("A & A") allegedly breached its contract by failing to prepare plans,
in
accordance with all zoning codes of the New York City Department of Buildings
("DOB"), for the design of a three-family house and subsequent approval from the DOB.
Defendant asserts that on September 8, 2003, plaintiff and defendant entered into a
contract to prepare plans for an extension to plaintiff's existing two-family house
located at 1336 Gillespie Avenue, Bronx, New York. Plaintiff agreed to pay defendant $5,800 for
professional services rendered. Defendant received three (3) checks in the amounts of $2,200,
$1,900 and $1,700 in fulfillment of the contract. According to defendant, plaintiff changed the
scope of the project on October 17, 2003 and requested that A & A prepare plans to construct a
three-family house instead of an extension. (Ainechi Affidavit, Exhibit 3). On December 22,
2003, plaintiff requested A & A to stop work on the project because she wanted to sell her house
"as is." (Ainechi Affidavit, Exhibit 4). On January 21, 2004, A & A received a written
authorization from plaintiff's son, John Pomilla, to resume work on the project. (Ainechi
Affidavit, Exhibit 5).
Due to the fact that plaintiff changed the scope of the project three (3) times,
defendant asserts that on February 5, 2004, the parties entered into a second contract for
professional services to prepare architectural plans for the construction of a three-family house.
According to [*2]the agreement, one (1) payment of $10,000 was
due at signing and one (1) payment of $6,800 was due upon the filing of plans with the DOB and
DOB approval. (Ainechi Affidavit, Exhibit 5).The contract also called for an additional $850 to
be paid for each reconsideration.
After the plans were approved by plaintiff, the plans were submitted to the DOB for
approval. The plans were subsequently approved and a building permit was issued for the project.
(Ainechi Affidavit, Exhibit 8). At the request of plaintiff's son, the project was audited by the
DOB. Plaintiff tendered a check dated February 28, 2004, in the amount of $10,000 for the first
payment. (Ainechi Affidavit, Exhibit 6). Plaintiff then submitted another check, dated June 10,
2004, in the amount of $5,800. (Ainechi Affidavit, Exhibit 9). A & A issued a receipt dated June
8, 2004 to plaintiff acknowledging this final payment. (Ainechi Affidavit, Exhibit 10). Plaintiff's
check subsequently bounced due to insufficient funds.
Defendant asserts that on or about July 25, 2004, it was notified by the DOB that A
& A's filing was being audited based upon several objections from plaintiff's son. In order to
resolve the objections, A & A met with the DOB on three separate occasions. On August 19,
2004, A & A learned of its removal from the project when it discovered that plaintiff had
withdrawn A & A's application and hired another architect.
Defendant argues that it is entitled to dismissal of the complaint because A & A did not breach the contract and was not the proximate cause of plaintiff's alleged damages. Defendant further argues that it is entitled to summary judgment for the recovery of $9,440 plus interest for plaintiff's breach in failing to pay defendant in accordance with the contract. In support of the motion, defendant submits an affidavit from Saeed Ainechi, a principal of A & A, attesting to the terms of the agreement and the completion thereof. In the alternative, defendant argues that plaintiff's recovery should be limited to the fees paid pursuant to the limitation of liability clause contained in the contract.
Plaintiff opposes the motion for summary judgment and argues that there are issues of
material fact as to whether the contract was in fact breached by plaintiff. Plaintiff
asserts that defendant failed to correctly prepare plans and obtain approval from the DOB. As a
result of the delay, plaintiff asserts that she was unable to build a three-family house as planned.
In support of her argument, plaintiff submits a letter from Deborah F. Taylor, Executive Director
of Technical Compliance at the DOB, addressed to plaintiff, dated July 6, 2004, stating that the
project was being audited. (Plaintiff's Exhibit 1). Plaintiff also submits a letter from architect,
Antonio Freda, addressed to the plaintiff dated July 22, 2004 which points out various problems
with A & A's plans. (Plaintiff's Exhibit 2). In addition, plaintiff submits an audit notice from the
DOB dated July 27, 2004 which lists ten (10) objections of the Technical Compliance Unit.
(Plaintiff's Exhibit 4). However, none of these documents are in admissible form.
A & A, in reply, refers to discrepancies between plaintiff's deposition testimony and
her affidavit. Plaintiff testified at her deposition that she submitted a final payment of $5,800 to
defendant and the money was taken out of her account. In contrast, plaintiff asserts in her
affidavit submitted in opposition to defendant's motion that she did not pay the remaining
balance due under the February 5, 2004 contract because approval was never obtained from the
[*3]DOB. (Plaintiff's Affidavit, pg. 2). However, a copy of the
check for $5,800 is annexed to defendant's moving papers. Thus plaintiff's affidavit clearly
contradicts her deposition testimony.
It is well established that summary judgment is a drastic remedy and should not be granted
where there is any doubt as to the existence of a triable issue. Rotuba Extruders v.
Ceppos, 46 NY2d 223 (1978). "To obtain summary judgment it is necessary that the
movant establish his cause of action or defense sufficiently to warrant the court as a matter of
law in directing judgment' in his favor and he must do so by tender of evidentiary proof in
admissible form." Friends of Animals, Inc. v. Associated Fur Manuf., Inc., 46 NY2d
1065 (1979). Once the movant has made this showing, the burden shifts to the party
opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the
existence of material issues of fact which require a trial of the action." Alvarez v.
Prospect Hospital, 68 NY2d 320 (1986). The court's function on a motion for summary
judgment is issue-finding rather than issue determination. Sillman v. Twentieth Century
Fox Film Corp., 3 NY2d 395 (1957).In a breach of contract case, plaintiff must
establish (1) the formation of a contract; (2) plaintiff's performance; (3) defendant's breach; and
(4) resulting damage. Furia v. Furia, 116 AD2d 694 (2nd Dept. 1986). In the
instant case, this court finds that plaintiff failed to establish defendant's breach of the February 5,
2004 contract. Defendant submits proof that it had obtained approval from the DOB and that
plaintiff submitted payment in satisfaction of the contract. Plaintiff has failed to submit any
evidence in admissible form to defeat defendant's motion.
This court finds that plaintiff failed to raise a genuine issue of material fact. No
affidavits or certified documents were submitted to show that defendant A & A's plans were not
prepared in accordance with DOB regulations. "Mere conclusions, expressions of hope or
unsubstantiated allegations or assertions are insufficient" to defeat a motion for summary
judgment. Zuckerman v. City of New York, 49 NY2d 557 (1980).
The court's role in a motion for summary judgment is not one of resolving issues of
credibility. Any inconsistencies that may exist between the deposition testimony of the plaintiff
and her affidavit submitted in opposition to the summary judgment motion, generally present
credibility issues for trial. See, Knepka v. Tallman, 278 AD2d 811 (4th Dept.
2000); Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999). However, it has also
been established that " where self-serving affidavits submitted by plaintiff in opposition clearly
contradict plaintiff's own deposition testimony and can only be considered to have been tailored
to avoid the consequences of her earlier testimony, they are insufficient to raise a triable issue of
fact to defeat defendant's motion for summary judgment." Phillips v. Bronx Lebanon
Hosp., 268 AD2d 318 (1st Dept. 2000).
Plaintiff in her affidavit claims that she did not tender the final payment due on the
contract because DOB approval was never obtained. However, her statement is belied by her
deposition testimony and the documentary evidence submitted by the defendant. Moreover, [*4]plaintiff's claims of additional monies lost from the delay in
construction cannot solely be attributed to defendant's actions. Plaintiff changed her mind with
respect to the project no less than three (3) times which led to necessary alterations in the
architectural plans.
Accordingly, defendant's motion for summary judgment dismissing plaintiff's
complaint is granted. Defendant's further motion for summary judgment on its counterclaim for
$9,440 which includes the remaining balance due ($6,800), the three meetings with the DOB
($850 for each reconsideration for a total of $2,550) and a bounced check fee from the bank
($90) is also granted.
Movant is directed to serve a copy of this order with notice of entry upon the
plaintiff and file proof thereof with the clerk's office.
This constitutes the decision and order of this court.
Dated: June 16, 2009
J.S.C.
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