AGF York 57 L.P. v Glikman

[*1] AGF York 57 L.P. v Glikman 2009 NY Slip Op 51611(U) [24 Misc 3d 1225(A)] Decided on July 16, 2009 Supreme Court, New York County Gische, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 16, 2009
Supreme Court, New York County

AGF York 57 L.P. and MOSHE AZOULAY, Plaintiff(s),

against

Judith Glikman d/b/a JUDITH GLIKMAN INTERIORS, Defendant(s).



6031119/06

Judith J. Gische, J.

AGF York, L.P. is the owner of an apartment located at Trump Tower, 721 Fifth Avenue, No. 62 A-B, New York, New York, 10022 ( the apartment"). Moshe Azoulay ( Azoulay") is the principal of AGF and the person who has the beneficial use of the apartment (collectively plaintiff"). Plaintiff has asserted causes of action for fraud, breach of contract, negligence, restitution and unjust enrichment against the defendant, Judith Glikman, an architect doing business as Judith Glikman Interiors" ( Glikman").

Issue was joined and plaintiff has filed the note of issue. The court has before it a timely motion by Glikman for summary judgment dismissing the complaint. CPLR § 3212; Brill v. City of New York, 2 NY3d 648 (2004). Plaintiff is opposed. The court's decision is as follows:

Arguments

Plaintiff contends it hired Glikman to be the "project manager" of the renovation of the subject apartment. The renovation was not only to have included a completely new look for the apartment, but also the introduction of a new, third bedroom. Plaintiff, though its principal, Azoulay, alleges that he needed someone who would be in charge because he and his wife live in Texas and therefore, were not always available to make important decisions swiftly

According to plaintiff, Glikman assured Azoulay she could handle the job and had the necessary skill set to do it competently. Plaintiff alleges that Glikman knew how important the third bedroom was to him, and that had he known no third bedroom could be made, he would not have proceeded with the renovation. The third bedroom was not built because a water pipe was discovered in the area where the bedroom was to have been constructed. Azoulary contends that the water pipe could easily have been located sooner had Glikman used due diligence in managing and supervising the project. Azoulay alleges that the pipe was discovered only after the finishes in the apartment had been removed and it was too late for him to abandon the project. The construction began in September 2004 and the pipe was discovered almost immediately after that.

Azoulay contends that he suffered monetary damages of $3,000,000 because the project should have been completed in 6 months, but was not completed until January 2006.

Azoulay, Glikman, Matt Donough of Tower Construction and Ran Oron of ROART were [*2]each deposed. Tower is the construction company who did the demolition work and ROART was hired by plaintiff to supervise/complete the project in October 2004, shortly after construction project was begun and after the water pipe was discovered. The latter two companies are not parties to this action.

It is undisputed that Azoulay and his wife, Suzanne, met with Glikman in August 2003, a year before the project began. At their meeting, they discussed the work the Azoulays wanted to have done at the apartment. It is also unrefuted that Azoulay's wife was somewhat familiar with Glikman's work. Following their meeting, Glikman prepared and sent Azoulay a letter dated August 20, 2003 ( letter agreement") identifying what they had talked about and the nature of the work to be done in the apartment. The letter agreement includes Glickman's request for a monetary retainer payable to her and another check payable to an architect. The first page of the letter agreement from Glikman states the following:

I have arranged for the architect to take the survey and begin the elevations. He will be start[ing] on Thursday, August 28th. If there are any changes, I will let you know beforehand. I will need a check made out to: Chin DeWatteville, for the architect. I will also need a retainer of $1,500 to begin work. You can make the check out to Judith Glikman Interiors/ The retainer fee will be applied toward hourly fees."

The 2nd and 3rd pages of the letter agreement contain an itemized list setting forth the terms of their agreement. The following language appears at the top of page 2:

General discussion was held regarding renovations of apartment. A new look" will be developed for space. Consideration was given to introducing wood finishes [etc.] Designer will select new furniture, fabrics and wall finishes based upon discussion and client approval. Draperies will be further discussed. Resolved to proceed in the following manner:

The first item on the list of renovations is the following:

"NEW BEDROOM

Locate new bedroom incorporating existing pantry and closet behind it. . .

Below are examples of some of the the other entries in the letter agreement:

"LIVING ROOM

Remove all existing wall finishes, save marble wall to remain intact. Ceiling details to remain. Reupholster existing seating and consider wood base to replace brass bases. Replace all lighting sconces. Consider new millwork partition on center column to house plasma screen. New seating area in left corner elevation to match existing sofas. Re-detail bar. Consider glass display cabinets to right and left of seating areas.

GUEST BEDROOM

Research possibility of refinishing existing lacquer millwork. Remove all mirror on doors and all wall finishes. Locate plasma [*3]

GUEST BATHROOM

New seamless shower door.

New vanity cabinetry

Remove mirror?

New lighting sconces"

The 4th and last page of the agreement sets out Glikman's fee schedule and identifies that the fees are for "project management:"

All drawings will be billed

at an hourly rate of$125.00

Project management will be

billed at an hourly rate of$125.00

All goods purchased (fabrics, wall coverings, furniture etc.) will be commission based. Commission will be calculated based ondesigner net price plus 25%.

All Fabrics and wall covering require full payment prior to shipping.

Furniture and workroom orders will require a 50% deposit which will be considered approval. Once ordered, client will be responsible for balance due upon delivery of goods."

It is unrefuted that aside from this letter agreement, the parties have no other written agreement. Although Azoulay testified at his EBT that he told Glikman she had a $600,000 budget to work with, Glikman denies was ever told about any formal budget.

Azoulay alleges (and testified at his EBT) that it was Glikman's sole decision to use the architectural firm of Chin DeWatteville (a non party). It is also undisputed that he paid the firm's fee of $1,500 and he did not have, ask for or receive any kind of written agreement with them. Glikman had the architects take measurements of the footprint" of the apartment and they prepared three drawings for the project. One drawing is entitled "demolition plan," another is entitled "reflected ceiling plan," and a third is entitled "construction plan." It is unrefuted that there was no architect or construction manager overseeing the project after the drawings were rendered up until the time that Azoulay hired Ran Oran of ROART. Azoulay also hired another architect later on (David G. of GF55").

Glikman testified at her EBT that she specifically asked the architect from Chin DeWatteville about the boxed-in area" they drew on one of the plans where the new bedroom was to be created. The architect reportedly told her no one would know whether the wall could be removed, or what was in that boxed space, until it was opened up. According to Glikman, she notified Mrs. Azoulay about the possibility the box might have to be opened up and what the architect had said.

The parties disagree how Tower was retained. Azoulay testified that Glikman decided to use Tower and the decision was made by her unilaterally. Glikman denies this. She testified that Mrs. Azoulay was familiar with the company and Tower was recommended by the building [*4]manager. Either way, she agreed (at the time) that Tower was a good choice because they came highly recommended. Glikman contends that Mrs. Azoulay was happy to use Tower because it had worked on 80% of the construction/renovation projects at Trump Tower, hence the name of Tower" Construction.

Tower's witness (McDonough) testified that the company has worked on numerous projects at Trump Tower and although McDonough dealt with Glikman, he also dealt with Azoulay himself. Glikman has provided copies of Tower's demolition" and renovation" proposals to the Azoulays. The renovation proposal with respect to the new guest bedroom is as follows: frame and sheetrock area at new bedroom" and Convert: (1) closet to guest bedroom demo[lition] . . .

Glickman claims that Tower did more than one walk-though of the apartment before the company was retained. She testified that she did one of the walkthroughs with McDonough. Glickman claims she pointed out the box and specifically told him what the architects had said. McDonough testified he could not remember whether he poked a hole into the wall to see what was behind it before the wall was demolished but as soon as he discovered the pipe, he called Glikman and Azoulay to a meeting. When they met, he gave Azoulay a proposal to move the pipe . . . to off-set it somewhere." Azoulay has also testified that he could have put the guest bedroom somewhere else, but rejected the idea because you [would] give up other space." He never discussed any other possibilities for a third bedroom either with ROART or GF55.

The Resident Manager of Trump Tower has provided his sworn affidavit that building plans are available in his office and nobody asked him for those plans before work began in the subject apartment. He also states that the wall contains risers and drains for apartments on floors 30 through 66 and had anyone asked for permission to move the pipes, it would have been denied.

Both sides agree that the demolition started in September 2004 and Azoulay hired his own architect, ROART, on October 18, 2004. Ran Oron ( Oran"), the principal of ROART, was deposed. He testified that when he looked at the drawings being used for the project, he found them meaningless" because they had a minimal amount of information in them."

Although Glikman agrees she helped coordinate the trades," and sometimes answered some routine, basic, questions that might have also been answered by an architect, her practice was to defer to the architect, construction manager or contractor on more substantial issues. Glikman testified there was no architect or construction manager on this project and she deferred to Tower because it was the contractor and familiar with the building. According to Glikman, this was not a very big project, in terms of demolition, and she felt everything was under control until Azoulay started to bring in more people.

Discussion

On a motion for summary judgment, however, the proponent has the initial burden of making a prima facie showing of entitlement to judgment, as a matter of law, by tendering sufficient evidence to eliminate any material issues of fact from the case. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Only if this burden is met by the proponent, does it then shift to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp ., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980).

The letter agreement is documentary evidence that Glikman agreed to be a project [*5]manager." Although the term project manager" is not defined in as many words in their agreement, the court looks to that agreement to determine the parties' relationship and their interdependency. EBC I. Inc. v. Goldman Sachs & Co., 5 NY3d 11, 20 (2005) (internal citations omitted). This is because the best evidence of what parties to a written agreement intend is what they say in their writing. Slamow v. Del Col, 79 NY2d 1016 (1992). Whether a writing is ambiguous is a question of law to be resolved by the court. W.W.W. Associates, Inc. v. Giancontieri, 77 NY2d 157, 162 (1990).

Examining the parties' agreement, the project" that Glikman was hired to be the manager" of was designing plaintiff's apartment so as to give it a new look." The objective ( a new look") would be effectuated through the introduction of wood finishes and mirrors, changing light fixtures, re-upholstering seating, buying new towels, and installing a new counter top, among other things. Glikman was not hired to construct" a new bedroom, or manage the construction process. She is not a construction manger, architect or contractor. Nor does her agreement with the plaintiff require her to supervise the work by those professionals to make sure it was done properly, code compliant, or in conformance with industry practice.

Glikman has established that she was not project manager for very long. Almost immediately after the renovation began, plaintiff hired ROART and Oran, an architect, took over, preparing new plans from scratch because he did not like the existing plans. Although plaintiff contends he paid twice what he expected to pay to have the new look" he wanted, and that this was entirely due to Glikman's incompetence, his agreement with Glikman does not contain a budget. Glikman has established that Azoulay was involved in many decisions and approved of orders and change orders as well.

Defendant has proved that her agreement with plaintiff was to provide design and aesthetic services. She was not hired, as plaintiff claims, to be a construction manager. Defendants has made a prima facie showing that there was no breach of contract. Plaintiff has failed to raise triable issues of fact to defeat defendant's motion. Therefore, defendant is entitled to summary judgment dismissing the second cause of action for breach of contract.

Other Claims

In addition to plaintiff's breach of contract claim, defendant has asserted claims for fraudulent inducement, negligence, unjust enrichment and restitution. A claim for fraudulent inducement requires that there be a misrepresentation of then-present fact, which is extraneous to the contract and involves a duty separate from, or in addition to, that imposed by the contract. see, Hawthorne Group, LLC v RRE Ventures, 7 AD3d 320, 323 (1st Dept 2004); see also, Orix Credit Alliance, Inc. v R.E. Hable Co., 256 AD2d 114 (1st Dept 1998). Defendant has established the terms of her contract with plaintiff. Plaintiff has not raised triable issues that he was defrauded. Even if plaintiff could prove that plaintiff told him she was the best" project manager, when in fact, she was the worst, that misrepresentation would not pertain to a duty that is collateral to their contract. Therefore, defendant's motion for summary judgment on plaintiff's fraudulent misrepresentation claim is granted.

The negligence cause of action is based upon the same facts as the breach of contract cause of action, and therefore duplicative. A simple breach of contract claim may not be considered a tort unless a legal duty independent of the contract, that is, arising out of circumstances extraneous to, and not constituting elements of, the contract itself, has been [*6]violated. Brown v. Brown, 12 AD3d 176, 176 (1st Dept 2004) (citing Clark-Fitzpatrick Inc. v. LIRR, 70 NY2d 382, 389 [1987]). The allegations of plaintiff do not satisfy this requirement, and therefore, the defendants are entitled to summary judgment dismissing the Third cause of action for negligence.

The legal principles of restitution and unjust enrichment are based upon quasi contract. They provide that someone should not be allowed to enrich him or herself unjustly at the expense of another. Spallina v. Giannoccaro, 98 AD2d 103 (4th Dept 1983). Generally, the principle of unjust enrichment applies to a situation where someone has received the money or goods of another which is inequitable or against good conscience for him or her to retain. Miller v. Schloss, 218 NY 400, 407 (1916). The remedy for unjust enrichment is restitution, which is essentially returning the money or property unjustly conferred.

Here, the parties had an agreement and there is no need to turn to equitable principles applicable to quasi contracts. The quasi contract claims are completely redundant of the breach of contract claim. In any event, although plaintiff is dissatisfied with the caliber of the work Glikman did, there is no evidence that she billed him for hours she did not work or otherwise receive money she did not earn. Therefore, there is no basis for plaintiff's claim that Glikman was unjustly enriched and must repay the money she received from him. Defendant has proved it is entitled to summary judgment dismissing the 4th and 5th causes of action as well. Plaintiff has not raised triable issues of fact to defeat the motion.

Conclusion

Glikman has proved she is entitled to summary judgment dismissing each cause of action in the complaint. Plaintiff has failed to raise material triable issues of fact that would justify the denial of the motion. Therefore, the complaint is dismissed in its entirety.

It is hereby

Ordered that defendant's motion for summary judgment is GRANTED for the reasons stated; and it is further

Ordered that the complaint is dismissed in its entirety; and it is further

Ordered that the Clerk shall enter judgment in favor of defendant JUDITH GLIKMAN d/b/a JUDITH GLIKMAN INTERIORS against plaintiffs AGF YORK 57 L.P. and MOSHE AZOULAY; and it is further

Ordered that any requested that has not been addressed has nonetheless been considered and is hereby expressly denied; and it is further

Ordered that this constitutes the decision and order of the court.

Dated:New York, New York

July 16, 2009So Ordered:

_______________________

Hon. Judith J. Gische, J.S.C.