Cypress Bldrs. Inc. v Abramsky

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Cypress Bldrs. Inc. v Abramsky 2016 NY Slip Op 32560(U) December 8, 2016 Supreme Court, Suffolk County Docket Number: 14-5322 Judge: Joseph Farneti Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SlltJR I WRM OROLR fNDEX o. 14-5322 CAL No. 15-01937CO SUPREME COU RT - ST /\TE OF 'EW YORK LAS. PART 37 - SUFFOLK COU TY PRESE N T: Jlon. JOSEPH FARNETI Acting Justice Supreme Court --------------------------------------------------------------X CYPRESS BUILDERS fNC., and KEVIN MURRAY, As Executor of the Estate of ROSS REISNER. MOTIOND/\TF. 3-17-16 ADJ. DATE 5-26-16 Mot Seq.# 001 - MotD McGIFF HALVERSON, LLP Attorney for Plaintiffs 96 South Ocean A venue Patchogue, New York l 1772 Plaintiffs, - against TERRI ABRAMSKYand DEBORAH PJSCTOTfA. DA VTD SHO'ITEN. PC Attorney for Defendants 5225 Nesconsct Ilighway, Suite 29 Port Jefferson Station, New York 11776 Defendants. ---------------------------------------------------------------X Upon tl1e following papers numbered I to_]]_ read on this motion for su mmary judgment; Notice of Motion/ Order Show Cause and supporting papers I - I 9 ; Notice of Cross Motion and supporting papers_; Answering Affidavits and supponing papers 20 - 34 ; Replying Affidavits and supporting papers 35 - 37 ; Other _ _ : it is, 10 ORDERED that the branch of the motion by defendants for summary judgment dismissing the complaint is granted; and it is further ORDERED that the branch of the motion by defendants for summary judgment in their favor on the counterclaim is denied. Plaintiffs Cypress Builders, Inc. and Kevin Murray. as executor of the estate of Ross Reisner, commenced this action on March 12. 2014, alleging breach of contract, unjust enrichment and quantum mcruit. Plainti!Ts allege that on September 14. 2007. Cypress Builders, Inc., which was owned and operated by Ross A. Reisner, entered into a construction contract with defendants Terri Abramsky and Dehorah Pisciotta, owners of real residential property located at 27 I l 1h Street in East Hampton, 1 cw [* 2] <· ~ pn:ss Huikkrs \. Ahramsk) lmk:\ o. P:tgl' 2 14-51~2 Y~>rk . I kll'ndants rl'tainl'd I l islo ric ( \mstruction Manag~·ml'nl ( 'orp .. O\\ nl'd and opl'rnkd h) ,i\nt1111 ( i. \\ 'L'l!cl. as a construction managc:r lO ~wcrscc thl' prnjl'd. On 1 o\·cmbc:r I 5. 2007. the contract bet\\L'l'll tht: parlil's < its addendum \\as signed by Anton Wct:1cl. us agent fo r the dd\.:ndant homcmrnl'rs. and md Ross Rl'iSlll'.L as presidl'nl nrC)prl'SS Buil<krs. In n.:k\alll part. the contrncl prm·idcd that time \\a ... or thl' cssl'm:c. with work to hc!!.in on November 15. 2007. and he completed within 120 davs. Plaintirt:-; , alkgl..'. that $84.186.00 or the total $162,430.00 contract price was not paid. Dckndants countcrclai 111. alkging thnt renovations Wl.!l'L' not performed in a prol\.:ssional workmanlike manner. that rlumhing work '""'snot Lo code and not pi.:rforrncd hy a licensed plumber. that additiona l sums wcrL' dl'rnandl'd. and th:1L the projct:L was behind schc<lulcd. Issue has bccn joineJ. discovery is complete and a notc nr issul'. has hc:c n Ii led. ~ lkkndants now move lo dismiss the complaint asserted against them and for summary judgment in their favor on the i.:ountcrclaim. In support of the motion defendants submit. among other Lhings. the pkadings: their O'Wn anidavits and the arfidavit or Amon Wetzel: variuus checks: plaintiffs· construction proposal: the contract: the deposition transcript of Kevin Murray; correspondence dated March 8. 2007 (sic) transmitted by focsimilc on March 8, 2008: and two kase agreements. In opposition. plriimiffs suhm it thc pleadings: the deposition transcripts or Kev in Murray. Teri Ahramsky. and Deborah Pisciotta; a home improvt;ment contractor license; the construction proposal: the addendum: the contract: a lien Jate<l March !.7, 2008: and an unsigned Jetter. Teri Abram sky avers that she and defendant Deborah Pi sciotta arc the owners or real property located at 27 11 'h Street in East I lampton. She avers that the property was purchased in 2004 as an investment and is rented for approximately $40.000.00 per year. In March 01'2007. an inside pipe broke and caused substantial damage to thi.: property. Documentary evidence cstabl ishcs that Travelers Insurance Company paid Advanced Restoration $40,412.73 for the initial water damage an<l clean ur. Thereafter. Travelers paid $176.706.70 for repairs and renovations to the subject property. /\bramsky avers that in September she hired Historic Construction Management Corp .. owned and operated by Anton Wetzel. as construction manager to oversee the renovations. On ovcrr1bcr 15. 2007. Cypress Builders (hereinafter "Cypress") was hired for the conscruction project. The construction start date was November 15. ~007, and the v.nrk was to be completed O) March 14. 2008. The agreement provided that tillll: WU!'- or th\.'. l.:!'>SellCC :-.O that the propert) could be rented l'or the ( Jampton.:.. :..Ulllllll'.I' season. Abram sky avers that during the course of the contract that there were prob km~ in the general the renovations, that the plumbing was not properly installed. and that the project was rnnstruction behind scheduk. /\hrnmsky avers that C'ypress was also demanding addi tional sums or money in \'iolatinn or the terms or the construction agreement. She rurther avers that Oil February 20, 2008, ··frustrated by the problems in the renovations:' Wetzel communicated with Cypress aho11t the <.:on~Lntction probkms. delays. failure to suhmit itemized invoic~s. and its d<.:mand for additional !\.:cs. According to /\bramsk~. on Fehruar) 20, ~008 , ··a Jccision \nls made to term inate ( \prc~s from the project. or [* 3] Cypress Builders\ /\bramsky Jnck:-; o. 14-5122 I khnrah Pisciolla ,m.:rs that she O\\ ns the subkct prnperl) \\'ith t\hramsk~ and concurs\\ ith the statcnh.:nts 111,1Je in 1 \hra111sk) -~ ,1rtidm·il. She adds that on ~ l arch I0. 2008 . th\.' Ja~ al'tcr \V1.'l1el dismissed Cypress from the project. she Wl.'nt tu the subjecl property and was surprised to lind l--1..·,·in Murray th<.:re. She avl·rs. ··1 told hilll that he shoultl not be al the pn)pcrty and that he had hetlcr call Well.cl i r he 111:eded further clari Ii cation or his dismissal from the project. !Vturra~ kn the pn>JK'l'I) :· .t\ntun \Vetzd avers that he is the president and sole shardwltler or I li storic Construc.:tion Management Corp. and was retai ncd as the construdion nmnager to oversee the prn.iect. On November 15. 2007. as agent for the homeowners. he signc<l lhc construttil)n contract and its addendum. \\'etrel avers that <luring the course of the renovation project. that he brought lo th<.: ;mention or (·ypress workmanship. quality. and safely issues that were not to the building code. including electrical and plumbing work. I le avers that becuuse Cypress failed to submit itemized invoices for services pursuant to the contract. was demanding additionaJ fees. and was considerably behind schedule. he lost faith in Cypress's ability as a general contractor. He avers he was authorized by /\bramsky and Pisciotta lo discuss th1.: matter with Cypress and. if not satisfied. to terminate it from the proj~ct. On March 8. 2008. Wetzel requested a hue.lg.ct review from Cypr~ss. as by that date /\hramsky and Pisciutl<l had paid Cypress $8 L2 I 5.00. Wl.'l/.cl a\ers that he met with Murray on Sunday. March 9. 2008. at a parking lot next to a Staples stor<.: to dist:uss the problems. Unsatisfied with Murruy's responses. Wetzel avers that he terminated Cypress from the prnjcct on March 9. 2008. He also avers Lhal later that same day he went to derendants· home in Glen Cov<.:. C\\' York and advised them he terminated Cypress. Kevin Murray testified that he worked for Cypress. and was in charge or field operations and negotiations. Ross R<.:isncr. ov•ner of Cypress. \,Vas both his life partner and business partner. I le testified that it ··was possible'" that he r<.:ccived a fax on March 8. 2008 from Wetzel and that ··he cannot be sure.. if he met Wetzel in a Staples parking lot to djscuss the contract. He tcsti lied that he was locked out of the project on Fehruary 20, '.2008. He tcstilicd. --Mr. Wetzel said that he would contact the ladies. if I'm not mistaken. and sec if I could access the property. since I was intending to continue constructiu11. and the ladies said ul the time that I could go into the property for one reason or another. which I don·t recall. but that I was not al lowed to continue any construction at that time ... J le tcsti lied that no one speciJical ly stated to him." 'you're fired. ' r1 T assumption by the locks heing changed was that. in isl fact." I le then r<.:tractcc.l that assumption. /\ta m1.:eting at Murray"s home. Murray ll.'.stified that --W<.:11cl suggested to jhiml at that time that jhcl was not going to be hurt. that jhcl should simply walk <l\\ay from this project and that lhc girls wanted 1 Wct:1el l ttl remind I Murray I that they w<.:rc both l r.s. Marsha ls and cou ld mukt: lhisJ Iii~ he ll." Murray testified that from March of'2008 until his death on September 24. 2013, Ross Rcisn<.:r did not file a lawsuit against defondanls. It is \\'e!J-scttlcd that a party moving for summary judgment must ma"c a 1winw.facie sho'' ing or cntitlemcnl lo judgmcnt as n matter or law, olT~ring surli.cicnl evidcntiary prnof in ad111issihlc form Lo demonstrate the absence of any material issues or fact (see A lvarez v Prospect llosp.. <>8 N Y2d 120. '.'08 YS~d 92J j l 986 I: Z uckerman 11 O~r <~f New York . 49 1 Y2d 557, -127 YS2d 595 11980 I: Frie11d.\ of [* 4] C) press Buikkrs ,. 1 \hramsky Inde:-; 11. I..+-) 12~ Page ..J A 11i11ia/s ,, Associated Fur lWfi·s. . 46 N Y2d I 0(>5. 4 I<> N YS2d 7<>0 I 1l)79 j J. Once such a slwwi ng has been made. the bur<len shins to the party opposing the motion for su1nmary .i udgmcn t to produce l'\'identiary proor in admissibk form sufficient to establish the e~ist~ncc or nwh.:rial issues or foe!\\ hich n:quirc a trial of the action (see All'arez 1• Pmspect llosp.. 68. Y2d }20. 508 NYS2d 92,:): Z11cJ..em11111 1· Ci~I' <d'New York . 49 NY2d 557. 427 NYS2d 595). The foilun; to make such aprilJlu/ucie shmvi 1 1g n.:quin:s the <.k:nial or the lllOtion regardless or the Sllfliciency of the Opposing papers (S('C' Jf'i11egratf I ' New York Univ. Med. Ctr.. 64 Y2d 85 I. 487 YS2d 316 I 1985 j}. The statut<.· of' limitations applicahk to a breach or contract action is six years from the date or the breach (('Pl R 21.112!). I !ere. dcfemlunts maintain ll1L· action accrued nn I\ larch 9. 2008. \\hen \i\lc11.d fin:d Cypn.:ss in tile par1'ing. lot ora Staples store. Under New York la'v\, there is no identili~d ~ tatulc nr liniiwtions period within which to bring a claim for unjusl enrichmenL but whcr~. as lien:. lhc unjust enrichment and breach or contract claims arc based upon the smrn: facts and pied in the alternative. a si~-year statute of limiLations applies (see Knobel v Slww, 90 /\D3<l 493. 495. 936 NYS2d 2 11 S( Dept 20 11 J). Likewise, the statute or limitations 0 11 a clain1 for (j/Wn/11111 menlil is six years (see CPLR 213 12 I). A plaintiff may not recover ror work performed outside the six year statute or limitations {see Moors v !fall. 143 /\.D2d 336. 532 YS2d 412 l2d Dept 1988 j). Defendants ha've established their primoji.1cie entitlement to summary judgment as the six year slatutc or limitations bars th<.: claims. as this actio11 wa$ not commenced unti l March 12. 20 l 4. ln opposition, plaintiffs rcforence lo an unsigned letter dated March I 8. 2008. n:fc:rring to a meeting on March 17, 2008, unsupported by affidavit or deposition lestimony, is withoul cvidcntiary Yaluc. Murray testified that he penned the letter. ''aikr having been locked out of the property" as an ··attempt al honoring. a contract." There is no c\'idcnce that the lcllcr was ever sent. and il is no! signed by any party. incl uding Murray. The mechanics· lien. also relied upon by plaintiff. indicates thal the last work performed on the subject properly was on March 12, 2008. The Iien is signec.I by Mark Nash. as an agent of Cypress. Verified by Mark ash. Lhe mechanics· lien was nolari1ed and liled ,,-ith the Clerk ol'Suffolk County on Man.:h 27, 1008. CPLR 105 (u) states that a ... verified pleading.· ma) be utilii'.ed as an affida vit whenever the latter is required ... In Sanchez v Natio11a/ R.R. Passenger Corp.. 2 I NY~d 890. 965 . YS2d 775 (2013 ), the Cou11 or Appeals ruled that this provisil)l1 pcrmilll:d a vcri lied complaint <md vcri lied bi II or particulars to be considered as anida\ it::. in opposition lo a motion for summary judgment. /\ccordingly. the mechanics· lien , while not a pleading. raises a triable issu<.: or foc i as to \\'ht.:n work was last performed on the sub.ice[ property. There fort.:. the issue or V1rl1elhcr plai nti rrs· claims arc barred by the statute of limitations canno1 he <lccidcd by motion. /\s to defendants' argument they arc entitled to summary j udgment in their favor on the 1:omplainl on the ground that. it is undisputed that the contract required. a11d plaintiff f'~1ikd to supply. i1emi1.eu invoices for st:r\'ict.::-. thal Cypress performed from the start or the project. l)cf'endants ha\'C established. based upon plaintiff's breach ol'the contrat:t. their entilkrnenl to summar) judgment dismis~ing the complaint, as Cypress was paid in rull l'nr all work and materials prior lo its breach or th ..., [* 5] ('ypre-;s Buildc.:rs v 1 \hramsky lmle:-: \Ju. 14-5"122 J>ag1..· 5 c.:ontract. In opposition. plaintiff lws foiku lo raise a tria ble: issm: or fac t rq.?.ar<ling its substantial and 111ateria I hn.:a<.:11 or thc.: 1;rnblntctin11 contract (.\<!t> Afrare-:. 1· Prospect llosp. . (i8 JI\ Y~d 120. 508 '\ YS 2d <)23: Zuckerman" Ci~1 · of Ne w York . 4') l\Y2d 557. -Q7 NYS2d )9)). 1\c<.:tmlingly, plainLilfs 1:n111plai11t is di~mis~ed . With n.:gard LO ddencJants· countcn: lairn. ddcndanls have f~1iled to establish their cntilk:rncnt lo sumnwry judgn11.:nt. l'hc alkgation of n:ntal loss for the 2009 summer rental season is speculati,·c and i~ not supporll.:d by documentary c.:vitlern:c or a lease. othc.:r than leases f(ir 20 I 0. 2012. 20 I~ ant.I 20 I ..J., or by c.:xpcrt testimony (Solow 11 Liebman. 262 AD2d 633. 692 YS2<..I 69312<.l Dept 19991). lklendant-; allegation of"out-of'- poc.:ki..:t loss.. is also speculative ns defendants have foiled to demonstrate an<l dirtt:rcntiate construction changes or amendments that were made during the course or the contract. Accordingly. defendants· application for judgment in their fornr on the counterclaim is denied. Dated: lkccmbc.:r 8. 2016 :arneti ct· g Jr(-;tice Supreme Court FINAL DISPOSITION _ X _ NO -FI NA L DISPOSITION

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