160 17th St. LLC v Qualtec Envtl. Inc.

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160 17th St. LLC v Qualtec Envtl. Inc. 2021 NY Slip Op 32210(U) November 8, 2021 Supreme Court, Kings County Docket Number: Index No. 511808/2021 Judge: Leon Ruchelsman 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 11/08/2021 03:19 PM NYSCEF DOC. NO. 100 INDEX NO. 511808/2021 RECEIVED NYSCEF: 11/08/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS :· CIVIL TERM: COMMERCIAL PART 8 - - - - - · - - - · - - - - - - - . - - - · . - - - - - - - - - . - - - - .. - - - - - - .. X. 160 1 7tfr ST. LLC, LA MIRADA-SC HIPPERS, LLC, SECOND DEVELOPMENT SERVICES INC., and SOS LEONARD LLC, Plaintiffs , Decision and order Index No. 511808/202 1 , . . against QUALTEC ENVIRONMENTAL INC., November 8, 2021 Defendant , ·--- ·. ·- ·-. ··-.-x ------·--------·-. .--.. --- . --·-. PRESENT: HON. LEON RUCHELSMAN The plaintiff has moved pursuant to CPLR §3212 seeking summary judgement arguing there are no questions of fact the The defendant hcls opposed the de·fendant breached 9 contract. motion. Papers were submitted by the parties and after reviewing all the arguments this court now makes the following determina tion .. On July 19, 2019 the defendant forwarded an estimate for asbestos: work to be performed on behalf of sos Companies LLG. SDS Companies LLC executed the proposal and indeed the defendant performed work on behalf of SOS. On July 9, 2020 an inspector examining the site issued a stop work oTg.e,r upon discoverin g asbestos at the location. The plaintiff alleges they incurred additiona l costs to rectify the errors committed by the defendant . Specifica lly, the plaintiff asserts the defendant issued a fa:.lse report indicating the asbestos was removed when in fact asbestos still remained. . <;'.,:::,y· Th.is lawsuit was commenced and now the plaintiff seeks su~aty judgement arguing there are no 1 of 5 [*FILED: 2] KINGS COUNTY CLERK 11/08/2021 03:19 PM NYSCEF DOC. NO. 100 INDEX NO. 511808/2021 RECEIVED NYSCEF: 11/08/2021 . . questions of fact the defendant breached a contract by failing to remove all the asbestos and by filing a fal.se report in that regard. for testing arid removal of asbestos.as well as for the filing of the required asbestoscoinpletion paperwork with the NYC Department of Environmental Protection,(''DEP"), and NYCDepartm entofBuildin gs, ("DOB"). Affirmatio n in :Support 38. Conc.lusio ns of Law Where the.mater ial facts at issue in a case are in dispute summary judgment cannot be granted ( Zuckerman v. City of New York, 49 NYS2d 557, 427 NYS2d 595 [1980J). Generally , it is for the jury, the trier o:f fact to deterrnine the· legal cause of any injury, however, where only o:he conclusio n may be drawn from the facts then the question of legal cause maybe decided by the trial court as a matter of law (Marino 136 NYS3d 324 v-. Jamison, 189 AD3d 1021, [2d Dept., 2021). It is well settled that :to succeed upon a claim of breach of contract the plaintiff must establish the existence of a contract, the plaintiff 's performan ce, the defendan t's breach and resulting dEJ.mages (Harris v. Seward Park Housing Corp., 79 AD3d 425, '913 NYS2d 161 [Pt Dept . ., 2010)). Further, as explained, in Gianelli v. RE/MAX of New York,. 144 AD3d 861, 41 NYS3d 273 [2d Dept., 2016], "a breach of contract cause of action fails as a 2 2 of 5 [*FILED: 3] KINGS COUNTY CLERK 11/08/2021 03:19 PM NYSCEF DOC. NO. 100 INDEX NO. 511808/2021 RECEIVED NYSCEF: 11/08/2021 matter of law iri the absence of any showing that a specific provision of the contract was breached" (id). First, there are questioris whether a contract was entered into between the parties. While SOS did sign the estimate, the accompanying email questioned whether the terms of the estimate could be i:::hanged. Specifically, SOS noted that while the estimat~ asked for half the fee up front, approximately $8,000 SOS requested if they could pay only $4,000 and the balance at a later date. There are thus: questions whether that request amounted to a counteroffer and there is ho indication in the papers whether such counteroffer was accepted. Therefore, notwithstanding the fact the defendant performed work there are outstanding questions of fact whether a contract was ever entered iritci between the parties. Further, even if a contract was entered into between the parties there are questions concerning the scope of the duties incumbent upon the defendant. The contra,ct in the form of the estimate describes the duties and lists "NYC DEP Notification. DEP Filing Feef' and '\Estimate';). "NYS DOL Notification NYS Filing Fee." (.§.§.§., It is unclear from the papers submitted what those duties entailed. The plaintiff asserts the duties included the submission of certain. documents. and an Asbestos .Assessmer1t Report which the plaintiff Cli:l.irn,s contained false information prompting this lawsuit. T.he plaintiff c1.aims the contract in.eluded 3 of 5 [*FILED: 4] KINGS COUNTY CLERK 11/08/2021 03:19 PM INDEX NO. 511808/2021 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 11/08/2021 "testing and removal of asbestos as. well as for the filing of the required asbestos completion paperwork with the NYC Department of Environment<'il Protection, Buildings, ("DOB") (''DEP"}; and NYC Department of (see, Affirmation in Support, <JI 38). However, there has been no evidence presented the notations in the estimate include the filing of any reports. Indeed, it is entirely unclear precisely what those duties entailed either than filing fees. It may certainly he true the duties included the preparation of such report, however, there are questions .of fact in this regard. Of cburse, if true that false documents were submitted on behalf of plaintiff then a tort was surely committed, however, without specific cont]:'.a.ct language requiring the truthful submission of such reports, there are questions whether a breach of contract occurred. In addition, there are questions whether a breach occurred concerning the \,..tork actually_ performed. The mere fa.ct a state official required additional work to be performed does not mean a breach occurred and in any . . event doe::i not delineate the .extent of any breach. These are facts which must be explored. through discovery .. Moreover, there are surely questions whether the damages sought is proper. The plaintiff alleges the defendant's conduct caused a sixty--eight day delay which resulted in damages of $744,924.05. This- number includes hiring another asbestos removal company, additional licensing and access fees, interest 4 4 of 5 [*FILED: 5] KINGS COUNTY CLERK 11/08/2021 03:19 PM NYSCEF DOC. NO. 100 INDEX NO. 511808/2021 RECEIVED NYSCEF: 11/08/2021 on loans, late penalties and taxes. The precise amounts of these alleged damages must surely be scrutinized and questioned. The ca1culatiohs preser:rted in the rnovih9 papers are insufficient to eliminate all questions concerning their accuracy. Therefore, th.e motion seeking summary judgement on the breach of contract caose of action is denied. So ordered. ENTER / DATED: November 8 , 2 021 Brooklyn N,Y. Hon. Leon Ruchelsman JSC 5 5 of 5

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