Danica Group, LLC v Chelsea Luxury Condos, LLC
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Danica Group, LLC v Chelsea Luxury Condos, LLC 2012 NY Slip Op 30771(U) March 26, 2012 Supreme Court, New York County Docket Number: 110446/2008 Judge: Eileen A. Rakower Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME , HON.OF THE T h ! W @ O R K COURT FFJ f PRESENT: i - NEW PART - /I . Justice INDEX NO. Index Number : 110446/2008 DANICA GROUP, LLC MOTION DATE vs. CHELSEA LUXURY CONDOS, LLC SEQUENCE NUMBER : 005 MOTION SEQ. NO. MOTION CAL. NO. SUMMARY JUDGMENT I The following papers, numbered 1 to were read on this motion tolfor PAPERS NUMBERED 1, P Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... Answering Affldavlta - Exhibits Replying Affldavits Cross-Motion: @ Yes 0 No FILED Upon the foregoing papers, it is ordered that this motion NEW YORK COUNTY CLERKS OFFICE Check one: r 2 FINAL DISPOSITION Check if appropriate: b!d 9 DO NOT POST 0 SUBMIT ORDER/JUDG. NON-FINAL DISPOSITION E REFERENCE 0 SETTLE ORDER /JUDG. [* 2] CHELSEA LUXURY CONDOS, LLC, ASTORIA FEDERAL SAVINGS AND LOAN ASSOCIATION and WESTCHESTER FIRE INSURANCE COMPANY, Defendants. .................................................................. X HON. EILEEN A. RAKOWER, J.S.C. Mot. Seq. 005 FILED MAR 2 8 2012 NEW YORK COUNTY CLERKS OFFICE Danica Group, LLC ( Plaintiff ) brings this action for foreclosure of its mechanic s lien, breach of contract, and quantum meruit. Plaintiff alleges that it performed plumbing, mechanical, W A C and standpipe/sprinkler work pursuant to p contract between Plaintiff and defendant Chelsea Luxury Condos LLC ( Chelsea ) for which it was not paid. Presently before the court is a motion by Plaintiff for summary judgment pursuant to CPLR $3212. Plaintiff asserts that summary judgment is warranted because Chelsea s failure to comply with its discovery obligations precludes Chelsea from introducing evidence in support of its affirmative defenses and counterclaims (which allege, inter alia, that Plaintiff was fired from the project for substandard work). Plaintiff points to a May 24, 20 11 Compliance Conference Order ( CCO ), which provides: defendant Chelsea is to respond to [Plaintiffs] discovery demands by 6/24/11 or Chelsea will be precluded from testifying at trial. Plaintiff states that Chelsea never responded to plaintiffs demands. ... Chelsea opposes the motion and cross-moves for an order dismissing Plaintiffs complaint or precluding Plaintiff from presenting evidence at trial based upon its own failure to comply with discovery orders. In the alternative, Chelsea seeks an order 1 [* 3] compelling Plaintiff to appear for deposition and to provi de responses to Chelsea s outstanding discovery demands. Chelsea hrther seeks leave to amend its answer to add a claim for rescission of contract; sanctions against Plaintiff; and dismissal of the complaint because Plaintiff was not licensed to perform the subject work. With regard to May 24, 201 1 CCO, Chelsea states that it complied with the order when, on May 3 1, 201 1, counsel for Chelsea emailed Danica s counsel ... preliminary documents supporting Chelsea s back-charge claim. These documents consisted of a Spreadsheet identifying the amount of back-charges; an Engineering Report detailing Danica s Defective work; and Preliminary letters sent to Danica detailing deficient work product and confirming that Danica was fired from [the project]. Chelsea further states that, on September 6, 201 I, it supplemented its response by sending Plaintiff a cd-rom containing 2035 pages of documents, invoices, [and] correspondence. Chelsea further claims that it is Plaintiff that has been dilatory in meeting its discovery obligations. Specifically, Chelsea states that despite being ordered by this Court on May 3 1,201 1 to appear for deposition, despite requesting adjournment of depositions and agreeing to appear for deposition on October 12,2011 and December 6, 201 1, [and] despite 3 good faith letters, Plaintiff has failed to appear for depositions. With respect to Chelsea s claim that Plaintiff is unlicensed contractor, and thus barred from bringing a breach of contract action or asserting a mechanic s lien, Chelsea submits a 2005 Settlement Agreement between Danica and the New York City Department of Buildings ( DOB ). The Settlement Agreement provides, inter alia, that [Plaintiffl will no longer engage in business activities as a licensed plumbing company or as a licensed fire suppression piping company. The Settlement Agreement further provided that Danica may subcontract its plumbing and fire suppression piping work on currently open permits and ARAs to any companies who properly meet the licensing requirements of the N.Y. Administrative Code, RCNY, any other Department of Buildings rules or regulations, or any 2 [* 4] othe; rules, regulations or laws of New York City or its administrative agencies e In reply, Plaintiff contends that the documents provided in the e-mail from Chelsea s counsel were insufficient and unresponsive to Plaintiffs demands, which sought invoices, contracts, plans, correspondences, agreements, bills, schematics, [and] change orders. Plaintiff further states that these documents were provided in furtherance of settlement negotiations, and not for purposes of responding to Plaintiffs prior demands. With respect to Chelsea s claim that Plaintiff performed work for which it was not licensed, Plaintiff submits the affidavit of Thomas Andreadakis, Plaintiff s president. Andreadakis states that Danica entered into a subcontracting agreement with Copper Plumbing and Heating LLC ,.. to perform that portion of the work requiring a licensed plumber. The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. Where the proponent makes such a showing, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel alone is not sufficient to satisfy this requirement. ( Zuckerman v. City of New York, 49 N.Y.2d 557 [ 19801). In addition, bald, conclusory allegations, even if believabIe, are not enough. (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255 [ 19701). ( Edison Stone Corp. v. 42nd Street Development Corp.,145 A.D.2d 249, 251-252 [ 1st Dept. 19891). [I]f it is reasonable to disagree about the material facts or about what may be inferred from undisputed facts, summary judgment may not be granted. Moreover, in deciding whether there is a material triable issue of fact, the facts must be viewed in the light most favorable to the nonmoving party (Ferluckaj v. Goldman Sachs & Co., 2009 NY Slip Op 2483 [2009]). As previously noted, Plaintiffs motion for summary judgment is predicated upon the assertion that Chelsea is precluded from presenting evidence that Plaintiffs work was substandard and/or that it was fired by Chelsea, based upon Chelsea s 3 [* 5] failure to provide court-order discovery. Chelsea similarly seeks dismis sal of the action based upon Plaintiffs failure to comply with its discovery obligations by failing to appear for depositions. Pursuant to CPLR $3 126, a court may impose sanctions when a party willfully fails to disclose information which the court finds ought to have been disclosed. The moving party must show conclusively that failure to disclose was willful, contumacious or due to bad faith. (Dauria v. City of New York, 127 AD2d 4 16[1st Dept. 19871). Here, the court finds that the drastic sanction of preclusion is inappropriate. Even assuming arguendo that Chelsea s May 3 1, 20 1 1 document production failed to supply Plaintiff with all responsive documents, that production, along with its subsequent production in September 201 1 support the conclusion that Chelsea has substantially complied with its discovery obligations and that any failure to provide responsive discovery was not willful, contumacious, or in bad faith (see McGlone v. Porth Auth. of N. Y. & NJI, 90 A.D.3d 479 [ 1st Dept. 201 11). Moreover, in light of the fact that Plaintiff has failed to provide a copy of the demands underpinning the prior discovery orders and the instant motion, the court is in no position to hold that Chelsea s production was inadequate. To the extent that Chelsea seeks dismissal of Plaintiffs complaint based upon Plaintiffs failure to appear for depositions, such relief is likewise denied, as Chelsea fails to show willful and contumacious conduct on the part of Plaintiff. However, the court finds that Chelsea is entitled to dismissal of the complaint because Plaintiff was not licensed to perform plumbing and fire suppression work. It is undisputed that it is unlawful for any entity to either perform plumbing work or engage in the business of plumbing in New York City without a license (Fisher Mech. Corp. v. Gateway Demolition Corp., 247 A.D.2d 579 [2nd Dept. 19981; see also Voo Do0 Contracting Corp. v. 1; & J Plumbing & Heating Corp., 264 A.D.2d 361 [lst Dept. 19991). Moreover, it is immaterial whether, as here, the unlicensed contractor subcontracts the work to an entity that is licensed (see Vitanza v. City o f New York, 48 A.D.2d 4 1, 44 [ 1st Dept. 19751); JME Enters. v. Kostynick Plumbing and Heating, Inc., 273 A.D.2d 201,203 [2nd Dept. 20001). Nor was Plaintiff permitted to subcontract the work under the Settlement Agreement with DOB. That Agreement only allowed Plaintiff to subcontract work to licensed entities on currently open permits and ARAs. Here, the contract, dated April 10, 2006 post-dates the Settlement Agreement by more than six months. 4 [* 6] Accordingly, Chelsea is entitledlo dismissal of Plaintiff s complaint. Lastly, Chelsea s motion for leave to file an amended answer with counterclaims is denied without prejudice, as Chelsea has failed to annex a copy of its proposed amended pleading. Wherefore it is hereby ORDERED that Plaintiffs motion for summary judgment is denied; and it is further ORDERED that Chelsea s cross-motion is granted to the extent that Plaintiffs mechanic s lien is vacated and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk upon the submission of an appropriate bill of costs. This constitutes the decision and order of the court. All other relief requested is denied. i DATED: March 26,2012 EILEEN A. RAKOWER, J.S.C. 5
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