Sass v NAT Varisco

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Sass v NAT Varisco 2011 NY Slip Op 33386(U) December 14, 2011 Sup Ct, NY County Docket Number: 111851/07 Judge: Jane S. Solomon 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. SCANNED ON I212212011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY JANE S, S L W OO P PRESENT: PART -vMOTION 8EQ. NO. ST 0 3 MOTION CAL. NO. The following papers, numbered 1 to 6 Notice of Motion/ Order to Show Cause - Affidavits were read on this motion to/for rdhF J-Su/-? - Exhibtts ... Answering Affidavits - Exhlblts leplylng Affidavits Cross-Motion: u Yes @ No Jpon the foregoing papere, it I ordered that this motion s 9 wi Dfl Dated: d(,, Check one: FINAL DISPOSITION Check if appropriate: 9 NON-FINAL DISPOSITION 0 DO NOT POST n SUBMIT ORDER/ JUDG. 0 REFERENCE SETTLE ORDER/ JUDG. [* 2] I n d e x No. 111851/07 ALISON SASS, IJECI$IQI ANI3 ORDEB Plaintiff, -against- NAT VARISCO, NAT VARISCO d / b / a ONPOINT CONSTRUCTION, TINA MARIE TAPINEKIS & ASSOCIATES, LLC., TMT RESTORATION CONSULTANTS LTD., EDDIE TORRES, EDDIE TORRES d/b/a ONPOINT CONSTRUCTION a n d ONPOINT CONSTRUCTION AND DEVELOPMENT, LLC K C 16 2011 f SOLOMON, J. : Defendant T i n a Marie T a p i n e k i s & Associates, LLC (TMTA) moves for summary judgment dismissing the complaint against it in this action arising from an apartment renovation gone wrong. The m o t i o n i s g r a n t e d i n part for the following reasons. P l a i n t i f f Alison S a s s ( S a s s ) owned t h e shares appurtenant to two adjacent c o o p e r a t i v e apartments located i n building on West 60th S t r e e t . apartments. a She w a n t e d to combine the She consulted with a d e s i g n e r , B a r b a r a S a c k a r o f f ( S a c k a r o f f ) , who i n t r o d u c e d her to an architect' and TMTA, a company in the business of i n t e r i o r renovation p r o j e c t s . Sass T h e a r c h i t e c t , f o r m e r defendant TMT Restoration Consultants L t d . , moved f o r summary judgment u n d e r m o t i o n sequence 0 0 2 . T h e motion was granted b y a n order d a t e d August 8, 2011. [* 3] hired TMTA to be the general contractor, pursuant to a w r i t t e n contract dated March 16, 2006 (Contract, Aff. of Dennis McCoobery, Esq., Ex. C). As submitted by TMTA, the Contract includes a letter from TMTA to Sackaroff that describes the scope of w o r k for architectural a n d general contracting/management services.' The specified construction work includes the following: demolition of walls, floors and finishes; construction of new w a l l s ; installation and painting of new d o o r s ; installation of new wood flooring as supplied by Sass; installation of new electrical outlets, switches, lighting, c a b l e TV and phone jacks; installation of new tile, fixtures and accessories in the bathroom; installation of new finished cabinetry supplied by Sass; installation of crown molding; construction and installation of a "Built-in" unit; and p r e p a r a t i o n and patching of wood flooring as required by t h e relocation of walls. Section 9.10.1 of the Contract provides t h a t contract disputes are referred to the architect for decision. A f t e r the architect's decision, or 30 days a f t e r the d i s p u t e i s submitted to the architect, the dispute is s u b j e c t to mediation \'as a condition precedent to the arbitration or the institution of legal or equitable proceedings b y either party." Section 9.10.3 Although the printed date on the letter is February 16, 2006, it has a handwritten d a t e by Varisco, a n d acceptance by Sass, d a t e d March 16, 2006. -2- [* 4] w o r k b y writing checks to "OnPoint Construction". Varisco continued to be her contact overseeing the p r o j e c t ; however, it appears that he had shifted loyalties to defendant OnPoint Construction and Development, LLC (Onpoint). It is not clear what Varisco or Sackaroff intended by advising Sass to direct payment to OnPoint, but apparently Varisco did n o t tell Sass that the j o b was no longer TMTA's responsibility. W o r k continued f o r several months, and many problems arose ( s e e Sass EBT, N o t i c e of Motion, Ex. B). Sass's A few examples of complaints: t h e floors were i n s t , a l l e d in the early stage of construction and were damaged b y subsequent work; the crown moldings were improperly installed and had to be partially removed and reinstalled, and the reinstallation was defective; base molding was crooked and mismatched; s h o w e r fixtures leaked and d i d not operate p r o p e r l y ; built-in units around windows, including radiator covers, were d e f e c t i v e ; bathroom f l o o r and wall tiles were cracked a n d uneven; and kitchen c a b i n e t s were installed improperly and had to be reinstalled. Sass commenced this action on August 30, 2 0 0 7 . The amended verified complaint has four causes o f a c t i o n : ( 1 ) negligence, ( 2 ) breach o f contract, ( 3 ) breach of warranty, and ( 4 ) fraud. TMTA appeared by counsel a n d filed its answer in November 2 0 0 7 . Defendants Varisco, Eddie Torres and Onpoint were -4- [* 5] -3- [* 6] n o t deposed.3 April 2 9 , A f t e r discovery, a note of issue was filed on 2011. A s a threshold issue, Sass contends that TMTA's motion for summary judgment should be d e n i e d because it did not annex a complete copy of the pleadings to the motion, as required by CPLR 3212(b). Sass cites case law stating that a motion for summary 'judgment should be denied if it is not supported by a copy of the pleadings ( e . g . , S t e d T e n a n t s O w n e r s Ccrp v C h u r n p i t a z , 5 AD3d 6 6 3 [Zd Dept 2 0 0 5 1 ) , b u t in this case, TMTA's failure to include a copy of its verified answer in the motion is remedied by plaintiff's annexation of the pleading to its opposition. Sass a l s o argues t h a t the motion should be denied b e c a u s e it relies in p a r t on her deposition transcript, which was not presented to h e r for signature before t h e motion ( C P L R 3116[a]). Sass submits a n affidavit opposing the motion in which she states that she did not read and sign the deposition transcript; however, she does not allege that the transcript testimony is inaccurate or incomplete. Her deposition does not include any admission against interest relied upon in this motion, and the f a c t s alleged in it are construed favorably to h e r as the party opposing summary judgment (see, Henderson v C i t y of New York, 1 7 8 AD2d 1 2 9 [ l a t Dept. 19911). Accordingly, TMTA's motion is not The court's records indicate that these defendants did not file answers, but no formal d e f a u l t has been taken against them. I -5- [* 7] denied on that basis. TMTA first argues t h a t the complaint should be dismissed as a g a i n s t it because Sass f a i l e d to comply with a contractual condition precedent to commencement of this lawsuit; i.e., she did not seek mediation as required in section 9.10.1 of the Contract, and she did not submit the dispute to arbitration in accordance with section 9.10.4. Despite New YOrk'S "long and strong public policy favoring arbitration" ( S t a r k v Molod Spitz DeSantis & Stark, PC, 9 NY3d 59, 6 6 [2007]), a contractual right to arbitration may be waived ( i d . ) . TMTA waived its right to arbitration, or to enforce the condition precedent provision in section 9.10.1, by participating in this litigation for more than three years without moving to compel arbitration, or even raising it as an affirmative defense ( s e e , Sherrill V Grayco Builders, Inc., 64 NY2d 261, 272 [1985]) . Next, TMTA correctly contends that the first cause of a c t i o n , f o r negligence, should be dismissed against on t h e ground t h a t it duplicates t h e b r e a c h of contract claim. (Clark Fitzpatrick, Inc. v L I R R Co., 7 0 N Y 2 d 3 8 2 [1987]). TMTA then argues that the breach of contract claim should be dismissed because S a s s is unable to prove that she suffered damages from TMTA's work, as opposed to the work performed independently b y defendants V a r i s c o and OnPoint. This argument fails because there are questions of fact as to what [* 8] p a r t o f t h e job Varisco d i d in h i s capacity a s TMTA's representative, and what part (if any) can be a t t r i b u t e d to him or O n P o i n t alone. Some of the work, such as t h e floor and crown molding installation, was TMTA's responsibility u n d e r the C o n t r a c t , a n d was performed before Varisco ever mentioned OnPoint. While o t h e r problems arose after Varisco asked that payments be made to OnPoint, it cannot be said t h a t TMTA no longer was contractually obligated t o Sass. TMTA is n o t entitled t o summary judgment a s to liability on e i t h e r the b r e a c h of c o n t r a c t or breach of warranty claims because TMTA w o r k e d on the project, there were problems w i t h t h a t w o r k f o r which TMTA was responsible, and there are questions of fact a b o u t w h e t h e r and when S a s s understood that Varisco had t a k e n the p r o j e c t over as OnPoint, terminating TMTA's obligation to her. TMTA's motion is granted with r e s p e c t t o the f r a u d claim. Sass a r g u e s that TMTA misrepresented t h e relationship between it and the a r c h i t e c t , defendant TMT R e s t o r a t i o n Consultants L t d . , b u t even if t r u e , there is no evidence of reliance on h e r p a r t or damages. Accordingly, that branch of TMTA's motion is g r a n t e d . For the foregoing reasons, it h e r e b y is ORDERED that d e f e n d a n t TMTA's motion for summary judgment is g r a n t e d t o the extent that the f i r s t and fourth c a u s e s of action are dismissed, and the motion otherwise is -7- I [* 9] denied; a n d it f u r t h e r is ORDERED that a pre-trial conference is scheduled to t a k e place in Part 55 on J a n u a r y 2 3 , 2 0 1 2 at 12 noon,4 Dated: December , 2011 ENTEX: NEW YORK COUNlY CLERK S OFFICE 4 In view of my retirement, check the court s website (httP;//www.nv~ourts.sov) c a l l the T r i a l S u p p o r t Office at or (646) 386-3155 to a s c e r t a i n the j u d g e h a n d l i n g the c a s e a n d his or h e r c o u r t room. -8-

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