B N Restoration, Inc. v Rogers & Dawson Bldg. Co., LLC.

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B N Restoration, Inc. v Rogers & Dawson Bldg. Co., LLC. 2018 NY Slip Op 33315(U) January 10, 2018 Supreme Court, Kings County Docket Number: 522775/2016 Judge: Carl J. Landicino Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*[FILED: 1] KINGS COUNTY CLERK 12/20/2018] NYSCEF DOC. NO. 101 INDEX NO. 522755/2016 .RECEIVED NY$CEF: 12/21/2018 At an JAS Term. Part 81 ol the ~upreme Court of rhe State of New York. held in and for the County of Kings, at lhc Courthouse, at 360 Adams Street, Brooklyn. New York, on the 1oin day of January 2018. j PRES ENT: I ION. CARL J. LANDICINO, Justice. - - - • - - - - - - - - - - - • - - - - - - - - ~ - - - - - - - - - - - - - -X Index No.: 52277512016 B N RESTORATION. INC.t Plainriff. - against - ROGERS & DAWSON RUILDTNG CO .• LLC. DECISION AND ORDER Dcferukmt. MotEons Sequence # 1• #2 --------------------~-X Recitation, motion: R8 required by CPLR §2219(a.), of the papen considered in the review of this Pa2eo; N11mbcred Not ice nf \fol ion/Cross Mot ion and 1/2. 314 Affidavits {Affirmations) Annexed .............. ,............................... . Opµossng Affidavics (Affirmations} .............................................. Mcnlorandu •n of Law ~~ .... I~ ••• ~~~~~ • • • ~ I •••• ~ I~~ •• ~ I~. I I•+~~ ••••• I I 11 ~~ •• ~~~I I I I~~~ •• r 5 Upon the foregoing papers. and after oral argument, the Court finds as follows: Plaintiff BN Restoration, [nc. (hereinafter the "Plaintiff' or BN') has commenced this 0 ac lion by fi1 ing of a summons and veri fie<l complaint on October 7, 2016. Plainti IT' s action is based upon both a cause or action for Breach of Contract and an Account Stated for alleged construction services. material. labor and equipment for the sum of $23,000.00. P~aintiff alleges that it perfonned these services for Defondant Rogers and Dawson Rui1ding Co., LLC (hereinafter the ··oefendanC or ··R & 0-') which Defendant was ac[ing as general contractor at a premises knovm as 346 13•h Slreel, Brook1yn. N.Y. {the ''Premises''), pursuant to a contracc (the ··contract") dated on or about J u]y 28j 20 l 5. 1 of 7 0 [*[FILED: 2] KINGS COUNTY CLERK 12/20/2018] INDEX NO. 522755/2016 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 12/21/2018 ... R&D moves (Motion Sequence #1) for the folJowing relief~ 1) dismissal of lhc complaint pursuant to CPI .R §3211 (a)(1) based upon documentary evidence, 2) dismissal of the Complaint pursuant to CPLR §321 I(a}(7) for fai]ure to sca[e a cause of action, 3) attorneys' fees and expenses for rhc cost of bringing the instant motion pursuant lo CPLR §3123{c) and for ?laintifr s improper denial of the Defondant"s Notice to Admit and 4) such other relief as ~he Court finds j US[ and proper. BN opposeii:; the Defendanl•s motion and cross-moves (Motion Sequence #2) for the foJlowing relief: l) compelling Defendant to comply with the Plaintiffs Notice of Discovery and lnspection, 2) compelling the De fondant to comply with the Plaitit! ff s demand for a Bill of Part[cula:rs. 3) compeHing the Defendant to tender an authorization in relation to the Pbinciffs judicial subpoena duces le<:um concerning Bank J.ewni, 4) an application for fees and sanctions in the form of legal recs for having to oppose the Defendant's frivolous motion and. 5) such Nher and further rt= lief as the Court finds just and proper. In support of its motion the Defcndarit concedes that the parties did enter into the Contract for construction at the Premises. and that the total Cnntract price was $230,000.00. The Defendant Gontend~ that th~ Contract (Defendant's motion at Exhibit .. C") at section 6, l provides for mediation as a condition precedent to suit The Defendant further contends that fhe ConLmct alw contained a rider to Contract (the .. Rider") (Defondant'~ motion at Exhibit ··o·~). The Defendant contends that the Rider at paragraph 12 provides as follows: "It was agreed that no performance bond is required, however, retention of 10% shall be held until Bank Leumi, USA, signoffs for the project or TCO, wh i chevcr is sooner."' The Defendant rcpresen[ed that as of the dare of lhe motion Bank Leumi USA had not signed off on the project and no Temporary Ccrtificacc of Occupancy had been issued. 2 2 of 7 [*[FILED: 3] KINGS COUNTY CLERK 12/20/2018] NYSCEF DOC. NO. 101 INDEX NO. 522755/2016 RECEIVED NYSCEF: 12/21/2018 ... Defendant argues that it has attempted to resolve this dispute by dirccti ng Plaintiff to (he retention provision and that Plaintiff has had many opportunities to disoonrinue the action but has nonetheless refused to do so. Defend ant in support of its motion has also proffered an affidavit by its purported Chief Executive Officer, Perry Finkelman (Plaintiffs Motion, Exhibi[ "F'). Finkelman confinns the accuracy of the Contract and Rider and states that ...[t]he Project is currently ongoing'\ and that "[t]o dale, Bank Leumi, USA has not signed off on the Project and a Tcm porary Cert ifica(C of Occupancy has not been issued." The Plaintiff opposes the motion. The Plaintiff as an initial matter argues that dii!;.. Dcfcndunt's relief seeking attorneys fees and expenses is based upon the Plaintifrs denial of the DefendanCs Notice to Admit but that the Defendant~s moving papers do not indude the Notice to Admit and the papers make no l'Urthcr reference thereto. As such, the Plaintiff contends~ the relief must be denied and the naintiff has no need to address the matter further. Although the PJain[iff does acknowledge the Conlract and Rider (Plaintitrs motio~ Exhibit .. A") the Piain[ifT contends chat the Defendant has failed to submit any documentary evidence or even competent testimonial evidence that che conditions to payment have not been achieved. The Plaintiff argues Ehat the documentation he has sought through discovery is needed in order to bring meaning to the Contract and Rider and that the Plaintiff should not have to rely upon the Defendant's mere representation concerning sign offs and temporary certificates. The Plaintiff also points lo provisions j n the Contract that provide for final payment. Plaintiff contends that the principals of the Dcfondant and the owner are the same and that Page 31. Artidc 9.6.2 of the Contract provides in pertinent part that "ltJhe Contrac[or shall promptly pay each subcontractor. upon rccc i pl of payment from the owner..... '"'reflecting percentages actuatly retained from payments to Che contractor on account of such subcontractor's portion of the work." Plaint i tT all(:gcs chat the Defendant in Jighl of mai ntai ni ng common principals. with the owner of the Premises '"contm![s] all the documentation between it. the owner (which in 3 3 of 7 [*[FILED: 4] KINGS COUNTY CLERK 12/20/2018] NYSCEF DOC. NO. 101 INDEX NO. 522755/2016 RECEIVED NYSCEF: 12/21/2018 ~· reality is the Defendant itseJt) and Bank Leumi." As such [he Plaintiff aJlegcs bad fai[h on rhc part of the Defendant. As to the issue of mediation bc:ing a condition precedent to suit the P1aintiff contends d:m the tota.Jity of the Contractual Provisions 6.1 and 6.1.2 provjde the Defendant with the right to demand mediation and provides for a stay of legai proceedings. The provision at 6.1.2 read!-l as follows: .. Legal or equitable proceedings, which shall be stayed pending medial ion for a period 0 f 60 days from the date 0 r fj] ing. unless stayed for a longer period by agreement of the parties or Court Order." The Plaintiff contend~ that a fair reading of the provision permits tne Defendant to seek mediation and contemplates post commencement medjation. Funhcr. the Plaintiff argues that ihe Defendant's engagement in the legal process {ie. responsive pleading and discovery exchange) served to waive the Defend.an[' s right to demand mediation. Premised upon this argumem and in opposition to the Defendant's motion Plaintiff supports its motion seeking that the Defendant comply with outstanding discovery demands. Plaintiff in support of the relief soughl provjdes a Preliminary Conference Order on Conseni of the Parties dated January i8, 2017 (Plaintiff's Motion, Exhibit .. E 0 ) Defendant in reply and opposition contends that lhc Rider is clear 1n that it provides that: ~·1:n the event any inconsis,cncy between the printed form agreement, preprinted form of general conditions and the Rider~ this Rider shall control and the inconsistent provisions of the printed forms shall be deleted.'' As such the De fondant contends that the rctai1rn.gc provision at Paragraph 12 of the Rider, to the extent it is inconsistent with 0 Lher paym1..'1ll provisions of the Con Lract~ shancontrol. The Defendant avers that the P1aintiff's reliance on the Contract Provisions is 4 4 of 7 or no moment in that [*[FILED: 5] KINGS COUNTY CLERK 12/20/2018] NYSCEF DOC. NO. 101 INDEX NO. 522755/2016 RECEIVED NYSCEF: 12/21/2018 the Rider is clear that without project sign off by Rank Leumi or the issuance of a temporary cert ifl cate of occupancy. PI ainti ff is not enlided to the release of rctai nagc. In order to prevail on a motion to dismiss pursuant to CPLR § 32 l 1(a)(7), "the standard is whether the pleading stntcs a cause or action, not whether the proponent of the pleading has a cause ufaction." Sokol v. Leader, 74 A.D.3d 1lSO~904 N.Y.S.2d 153 1 l55 (2nd Dept~ 2010]; see Gu;:genheimcr "· Ginzburg. 43 N.Y.2d 268, 275. 401 N.Y.S.2d 182. 372 N.E.2d 17 [1997]~ Foley v. D Agm·tino. 21 A. D.2d 60, 64--65, 248 N. Y .S .2d t 2 l [1 51 Dept. \ 960}. Moreover; a 1 Court must "'accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable infercnce. and detennine only whclhcr the facts as alleged fit \i;,ithin any cognizable legal theory'" Normon v. City of New York. 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 [2007]. quoting Leon v. Marline:, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972. 638 N.E.2d 511 [ 1994]. A motion to dismiss pursuant to CPLR §32 l l (a)( 1) win be granted only if the "documentary evidence rc::1olves aJl factuaJ issues as a matter of law, and conclu.sively disposes of the plaintiff's claim." Fontanetra v. Doe, 73 A.D.Jd 78, 83-84, 898 N. Y .S.2d 569~ 573 [2nd Depl, 2010), quoting Portis Fin. Serv.f., LLC v. Fimat Futures USA, Inc.• 290 A.D.2d 383, 737 N. Y .S.2d 40 [2nd Dept, 2002]. ••Although documents such as deeds, which reflect out-Qf-c:ourt transactions and are es~cntially unas:-.;ailable, qualify as "documentary evidence" within the intended scope of CPLR § 3211 (a)( l ), affidavits and deposition testimony do no[.'' Suchmacher v. Grocery, 73 A.D.3d 1017. 1017, 900 N.Y.S.2d 686 [2nd Dept, 2010]. As an initial mauer lhe lack of mediation prior to suit is not, pursuant 10 the clear language of lhc contract. a basis to dismiss this action. The language contemplates a stay of legal proceedings which implies thal legaJ proceedings may be commenced \'lo1thom lhc resort to ahemative dispute resolution. Further the Defendant has engaged in the litigation process und has s 5 of 7 [*[FILED: 6] KINGS COUNTY CLERK 12/20/2018] NYSC~F INDEX NO. 522755/2016 RECEIVED NYSCEF: 12/21/2018 DOC. NO. 101 .. nor assencd mediation as a precondition to suil as an affinnative defense. See LZG Realty, LLC "· H. D- W 2005 Forest. LLC, 71 A.D .Jd 64 2, 643t 896 N. Y.S. 2d 3 89) 390 [2not Dept. 2010]. In rctation to the remainder of the Defendant's argument, it essentially rests on the notion chat neither of the conditions to the release of rc[cntion have been satisfied. I lowever) as one of the conditions relates co the acts of non~party Bank Leumi USA the Defendant's evidence in support of the motion is insufficient under both CPLR *§321 l(a)(l) and (7). Although the Contract and Rider are dear in relation to the release of rctainage the representation by the Dcfcndanfs CEO in relation to the action of Bank Leumi USA is insufficient. Plaintiff states a cause of action and is entitled to proceed unless the Defendant can show that the condition has not been achieved. "lbe Defendant ha~ faBcd to do this and as such the Defendant's motjon pursuant to CPLR §§3211 (a)( l) and (7) is denied. The Court also agrees with the Plaintiff in that the relief seeking attorney's fees and expenses is unsuppon.cd by the Defendant's papers and is therefore also denied. fn rc]ation to the Plainlifrs motion ihe Court finds that it is also denied. The moving party on a motion seeking resolve a discovery dispu[c has the burden of demonstra1jng that they have satisfied the requirements of 22 NYCRR §202.?[cj. Said rule prm·ides as follows: The affinnalion of the good faith effort to resolve the issues raised by the motion shal I indicate the time~ place and nature of the consul!ati on and the i ssucs discussed and un y reso1uti ons. or shall indicale good cause why no such conforral with counsel for opposing parties was held. 22 NYCRR §202.7[cJ. The purpose of the rule requiring an affinnation in good faith is to ensure tha{ the panies can attempt to resolve disputes prior lo lhc Court's involvement so as to narrow the focus of the dispute and potenrially eliminate the Court's involvement Jn the instant proceeding, the PJaincitT has failed to pro\lide an Affirmation in Good Faith regarding any communications between che parties related to what discovery was outstanding and what steps were taken to resolve the 6 6 of 7 [*[FILED: 7] KINGS COUNTY CLERK 12/20/2018] NYSCEF DOC. NO. 101 . RECEIVED NYSCEF: 12/21/2018 • ,.. I INDEX NO. 522755/2016 .., discovery dispute at issue. Instead) the P la inti ff mcrcl y attachcs the Pre Ii mi nary Con fcrcnce Order and various other discovery re]ated documents. This is insufficient and a lack of good faith on the Plaintiff's part. As a result. the instant mo[ion is procedurally defective and is therefore denied. See Quiroz v, Reilia, 68 A.D.3d 957. 960, 893 N. Y.S.2d 70, 74 (2nJ Dept, 20091~ Hegler v. Loews Roosevelt Field Cinemas. Inc.~ 280 A.D.2d 645, 646, 720 N.Y.S.2d 844 [21'11 Dept, 2001}; Barnes v. NYNEX Inc., 274 A.D.2d 368. 7l l N.Y.S.2d 893 [2!kl Dept~ 2000]; Romera v. Korn. 236 A.D.2d 598} 654 N.Y.S.2d 38 [2"d Dept, 1997]; Gonzalez v. Imernational Bus. Machs. Corp., 236 AJJ.2d 363, 654 N.Y.S.2d 327 [2~~ ncpt. 1997]. Based on the foregoing. it is hereby ORDERED as follows: The Dcfendanfs motion (Motion Sequence #1) is denied. The Plainci fr s mmion ( Motjon Seq uenC¢ # 2) is denied. The foregoing constitutes the Decision and Order of the Coun. 7 of 7

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