J.B. Custom Masonry & Concrete, Inc. v Sutera

[*1] J.B. Custom Masonry & Concrete, Inc. v Sutera 2015 NY Slip Op 51193(U) Decided on August 17, 2015 Supreme Court, Queens County McDonald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 17, 2015
Supreme Court, Queens County

J.B. Custom Masonry & Concrete, Inc., Plaintiff,

against

Kim Sutera, Defendant.



19925/2011
Robert J. McDonald, J.

The following papers numbered 1 to 8 read on this motion by defendant for an order adopting and confirming in whole the Findings of Fact and Conclusions of Law of the Decision and Order dated March 23, 2015 of the New York City Department of Consumer Affairs (DCA); pursuant to CPLR 3212(b) granting summary judgment to defendant on each of her counterclaims as contained in her verified answer, and awarding defendant a money judgment in the amount of $343,081.44l payable by plaintiff and New York Construction 69 Co., Inc., jointly and severally, plus statutory interest from January 2011, along with costs and disbursements of this action; granting defendant summary judgment on plaintiff's Amended Verified Complaint, dismissing plaintiff's amended verified complaint; directing the County Clerk of Queens County and the Office of the Register of the City of New York, Queens County to discharge and cancel the Notice of Mechanics Lien filed by plaintiff against defendant; and directing the discharge and cancellation of a certain surety bond in the nature of a bond to [*2]cancel a mechanic's lien issued by Suretec Insurance Company, under Bond No. 3349830 in the sum of $69,462.25 previously filed by defendant.[FN1]

Papers Numbered

Notice of Motion-Affirmation-Exhibits.................1 - 4

Affirmation in Opposition-Affidavit...................5 - 6

Reply Affirmation-Exhibits............................7 - 8

By supplemental summons and complaint filed on September 13, 2011, plaintiff J. B. Custom Masonry & Concrete, Inc., a general contracting company, alleges that on January 11, 2010, it contracted with defendant Kim Sutera to provide labor and materials for remodeling and alterations on defendant's home located at 133-01 Rockaway Beach Boulevard, Queens County, New York. The construction contract price was $377,000.00 of which defendant paid $313,852.50, leaving a balance due of $63,147.50. Plaintiff claims that it performed all agreed upon work and is entitled to payment of the agreed upon price. Plaintiff filed a notice of pendency on August 23, 2011 and notice of mechanic's lien in the amount of $63,147.50 on May 19, 2011. The complaint asserts two causes of action, one for breach of contract for construction and improvements to defendant's home and the second for foreclosure of the mechanic's lien filed with the County Clerk of Queens County on May 19, 2011.

Defendant claims that plaintiff performed sub-standard work, and as a result, defendant terminated plaintiff's services in February 2011 and hired a new general contractor to repair plaintiff's prior work.

During the pendency of this action, a complaint was filed by defendant against plaintiff before DCA. A full hearing was conducted before DCA. Plaintiff was represented by legal counsel, called witnesses on its own behalf, presented evidence, and was provided an opportunity to cross-examine all of defendant's witnesses as to those same issues raised in the complaint and counterclaim presently before this Court. DCA issued a Decision and Order dated March 23, 2015 determining that: (I) plaintiff engaged in deceptive trade practices in its construction on defendant's home; (ii) plaintiff received payment from defendant [*3]for services which it promised to complete and were never performed; (iii) plaintiff materially deviated from the architect's plans and disregarded the plans and specifications outlined in the parties' construction contract; (iv) plaintiff failed to perform construction on defendant's home in a skillful workmanlike and competent manner; and (v) plaintiff abandoned the job. As a result of the foregoing, DCA revoked the home improvement contractor's license of plaintiff, imposed fines against plaintiff, and awarded defendant restitution in the amount of $343,081.44.

Based upon the foregoing, defendant now moves for summary judgment on plaintiff's complaint and defendant's counterclaims, asking this Court to cancel the mechanic's lien and surety bond filed against defendant's home, and directing a money judgement be entered in the amount determined by DCA. Defendant's request for statutory interest in addition to the restitution amount determined by DCA is denied as such request was previously denied by DCA.

In opposition, plaintiff submits two attorney affirmations. Plaintiff's counsel argues that there is no identity of issue between the DCA proceeding and this action, that the DCA decision is not final, and that DCA exceeded its regulatory authority.

Defendant alleges that she has not received any payments from plaintiff or New York Construction 69 Co., Inc., and as such, relief under CPLR 3212 is proper to enforce the restitution order of DCA. While New York Construction 69 Co., Inc. is not a named party in this action, DCA determined that New York Construction 69, Inc., Co. was acting as the alter ego to plaintiff, and therefore, is responsible for restitution to plaintiff.

It is well established that the proponent of a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form in support of its position (see Zuckerman v. City of New York, 49 NY2d 557[1980]).

The doctrine of collateral estoppel is applicable to give conclusive effect to the quasi-judicial determinations of an administrative agency (see Ryan v New York Telephone Co., 62 NY2d 494 [1984]). Collateral estoppel precludes a party from [*4]relitigating an issue that was previously raised and decided in a proceeding where that party had a full and fair opportunity to litigate the issue of fact or law (see id.). "In the application of collateral estoppel with respect to administrative determinations, the burden rests upon the proponent of collateral estoppel to demonstrate the identicality and decisiveness of the issue, while the burden rests upon the opponent to establish the absence of a full and fair opportunity to litigate the issue in a prior action or proceeding." (id.).

In this action, defendant counterclaimed for breach of contract, breach of implied warranties of fitness, skill and workmanlike construction, fraud, and a declaratory judgment that the lien is void. Defendant has demonstrated that there is identicality of issues in this action and the DCA action. In opposition, plaintiff conclusively states that defendant has not set forth the elements of her counterclaims, and thus, has not demonstrated identicality of issues. Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to defeat a summary judgment motion (see Zuckerman v. City of New York, 49 NY2d 557[1980]).

Defendant also established a finality of issue. Although plaintiff argues that it may file an appeal, plaintiff fails to present any documentary evidence in admissible form asserting such. Plaintiff's counsel ultimately stats that he is unaware whether the transcript from the DCA proceeding was ordered or whether the matter was stayed. Pursuant to DCA rules, plaintiff had thirty days from the date of the Decision and Order to file an appeal or file an application requesting a stay. As such, plaintiff had until April 21, 2015 to appeal the DCA decision. Plaintiff failed to do so. Although New York Construction 69 Co., Inc. did file an appeal, the sole issue on appeal is whether NY Construction 69 Co., Inc. is the alter ego or successor in interest of plaintiff. Accordingly, the underlying merits of the DCA Decision and Order, i.e. whether plaintiff breached its contract or engaged in unworkmanlike construction in the work upon defendant's home, is a final decision.

Lastly, defendant failed to assert how DCA exceeded its regulatory authority. DCA has the authority to adjudicate whether a home improvement contractor deviated or disregarded plans or specifications as contained in a home improvement contract, whether the contractor made substantial misrepresentations or false promises carrying out the terms of a home improvement contract, and whether the contractor failed to perform work under a home improvement contract in a skillful and competent manner [*5](see NYC Admin. Code 20-393). Furthermore, DCA may impose civil penalties, including awarding a homeowner monetary damages and restitution for the cost of repairs and related expenses (see NYC Admin. Code 20-104, 20-401[3]). Accordingly, DCA had authority to determine whether plaintiff engaged in unworkmanlike and defective construction of defendant's home and the amount of damages as a result thereof. Regarding defendant's fraud counterclaim, DCA may determine whether a contractor committed a fraud against a homeowner, and upon such determination DCA, can award restitution for the damages sustained by the homeowner as a result of such fraud (see NYC Admin. Code 20-393[3], 20-396[b]). Lastly, to the extent that DCA determined that it was plaintiff who failed to perform, abandoned the job and breached the home improvement contract with defendant, plaintiff's complaint asserting causes of action for breach of contract and foreclosure of a mechanic's lien must fail as a contractor who engaged in defective construction cannot recover for breach of contract, or foreclose on a mechanic's lien which is based upon such defective construction.

As defendant met her burden regarding finality and identicality of issues, plaintiff must demonstrate that it did not have a full and fair opportunity to litigate the issues in the DCA proceeding. Defendant fails to allege any facts in attempt to establish such burden.

In light of the foregoing, defendant's motion is granted to the extent that it is hereby

ORDERED, that the Findings of Fact and Conclusions of Law of the New York City Department of Consumer Affairs, in a Decision and Order bearing case number CD/DD 500132939, dated March 23, 2015 are adopted and confirmed as to its findings regarding plaintiff J.B. Custom Masonry & Concrete, Inc. and defendant Kim Sutera; and it is further

ORDERED, that summary judgment is granted in favor of defendant Kim Sutera and against plaintiff J.B. Custom Masonry & Concrete, Inc. on defendant's counterclaims, and defendant Kim Sutera is awarded a money judgment in the amount of $343,081.44; and it is further

ORDERED, that summary judgment is granted in favor of defendant Kim Sutera and against plaintiff J.B. Custom Masonry & Concrete, Inc. on plaintiff's amended verified complaint, and plaintiff's amended verified complaint is dismissed; and it is further

ORDERED, that the County Clerk of the County of Queens, upon being served with a certified copy of this order with notice of entry, vacate and cancel the Notice of Mechanic's Lien filed by plaintiff J.B. Custom Masonry & Concrete, Inc. as against real property owned by defendant Kim Sutera and located at 133-01 Rockaway Beach Boulevard, Belle Harbor, New York, Block 16278, Lot 008, and said Clerk is directed to enter upon the margin of the record a notice of cancellation referring to this order; and it is further

ORDERED, the County Clerk of the County of Queens, upon being served with a certified copy of this order with notice of entry, vacate and cancel the Bond To Cancel A Mechanic's Lien issued by Suretec Insurance Company, under Bond No. 3349830, in the sum of $69,462.25, filed by defendant Kim Sutera, as against the real property known as 133-01 Rockaway Beach Boulevard, Belle Harbor, New York, Block 16278, Lot 008, and said Clerk is directed to enter upon the margin of the record a notice of cancellation referring to this order.

Dated: August 17, 2015

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.

Footnotes

Footnote 1:This Court did not consider any relief sought against New York Construction 69 Co., Inc. Defendant withdrew her branch of her motion seeking relief against New York Construction 69 Co., Inc. in her Reply papers. This Court also notes that New York Construction 69 Co., Inc. is not a party to this action.