Meserole Hub LLC v Rosenzweig

[*1] Meserole Hub LLC v Rosenzweig 2021 NY Slip Op 50463(U) Decided on May 14, 2021 Supreme Court, Kings County Boddie, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 14, 2021
Supreme Court, Kings County

Meserole Hub LLC, Plaintiff,

against

Solomon Rosenzweig, and SOLOMON ROSENZWEIG, PE P.C., d/b/a SRPE, Defendants.



SOLOMON ROSENZWEIG, and SOLOMON ROSENZWEIG, PE P.C., d/b/a SRPE, Third-Party Plaintiffs,

against

Y.N.H. CONSTRUCTION INC. Third-Party Defendant.



524299/2018



Avery S. Mehlman

HERRICK, FEINSTEIN LLP

2 Park Avenue

New York, NY 10016

(212)-592-5985

E-mail: amehlman@herrick.com

Attorney for Plaintiff Meserole Hub LLC

Jennifer M. Netska

Milber Makris Plousadis & Seiden, LLP

1000 Woodbury Road, Suite 402

Woodbury, NY 11797 (516) -712-4000

Service E-mail: jnetska@milbermakris.com

Attorney for Defendants Solomon Rosenzweig and Solomon Rosenzweig, P.E., P.C
Reginald A. Boddie, J.

Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this motion:

Papers Numbered

MS 2 Docs. No. 28-45

Upon the foregoing cited papers, defendants' motion for partial summary judgment, pursuant to CPLR 3212 (b), (e) and (g), is decided as follows:

Plaintiff Meserole Hub LLC (Meserole Hub) owns property located at 152 Manhattan Avenue, Brooklyn, New York (the property). Plaintiff desired to construct a five-story, twenty-four-unit, mixed-use building (the building) on the property. Plaintiff alleged that on or about December 23, 2014, plaintiff, by and through Builders Assistance Corp., entered into a contract with defendant Solomon Rosenzweig, PE P.C. (SRPE) for engineering services in connection with the development of the property. The contract contained a clause which read ". . . Engineer's total liability to Owner under this Agreement shall be limited to $50,000 or the total amount of compensation received by Engineer, whichever is greater."

Plaintiff alleged, pursuant to the contract and in exchange for defendants' services, it paid defendants a lump sum of $25,000. Plaintiff alleged that upon execution of the contract, on or about December 24, 2014, defendants reviewed and submitted plans to the New York City Department of Buildings (DOB), which were approved on January 15, 2016. Thereafter, construction of the building commenced and continued until approximately March 30, 2016, when DOB issued citations to plaintiff and stopped construction on the building due to, among other things, deficiencies in the rebar in the building.

Plaintiff alleged that despite multiple requests by plaintiff, defendants failed to respond quickly to the DOB citations and thus work could not resume on the project. In response, plaintiff consulted with another engineering firm about remedying the deficiencies and discovered there were far more serious issues with the design of the building. Plaintiff therefore retained a new engineer and was forced to expend additional sums to correct the deficiencies in the building. Plaintiff alleged completion of the building was delayed by approximately six months and resulted in lost revenue.

Plaintiff commenced this action for breach of contract, professional malpractice/

negligence and unjust enrichment. Without including a statement of material facts in their papers, defendants moved for partial summary judgment pursuant to CPLR 3212 (b), (e) and (g), to enforce the limitation of liability provision and dismiss the professional malpractice/

negligence and unjust enrichment causes of action as duplicative of plaintiff's breach of contract [*2]claim. Plaintiff opposed on the ground that defendants' motion was premature because discovery may lead to relevant evidence.

As a preliminary matter, Rule 19-a of the Rules of the Commercial Division of the Supreme Court of New York provides:

Upon any motion for summary judgment, other than a motion made pursuant to CPLR 3213, the court may direct that there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried (22 NYCRR § 202.70 [g], Rule 19-a).

Similarly, the Kings County Commercial Division Rules provide that "[a]ll summary judgment motions shall be accompanied by a Statement of Material Facts as set forth in the Uniform Rules, § 202.70 (g), Rule 19-a" (Kings County Commercial Division Rule 15). Courts, however, are "not compelled to grant summary judgment solely on the basis of blind adherence to the procedure set forth in rule 19-a" and may properly consider whether the moving parties' submissions include sufficient evidentiary facts and legal arguments to support their contentions (see Melvin D. Hiller & Jeffrey Hiller LLC v Buel, 33 Misc 3d 1213[A] [Sup Ct, Kings County 2011]).

Here, defendants failed to include a statement of material facts in their motion for partial summary judgment. Plaintiff argued that defendants' motion should be denied on that basis. However, in their motion and underlying papers, defendants proffered sufficient evidentiary facts to support their legal arguments for summary judgment with respect to the first through third causes of action. Under these circumstances, defendants' failure to comply with the specific requirements of rule 19-a is not grounds for denial of the motion (see Hiller, 33 Misc 3d 1213[A]).

Turning to the merits of defendants' motion for partial summary judgment. Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). A party moving for summary judgment must make a prima facie showing of entitlement as a matter of law sufficient to demonstrate the absence of any material issues of fact, but once a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require trial of the action (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman, 49 NY2d at 562). "[W]hile determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable to the opponent (see CPLR 3212 [f]), [a] determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence" or the facts essential to justify opposition were exclusively within the knowledge and control of the movant (Anne Koplick Designs, Inc. v Lite, 76 AD3d 535 [2d Dept 2010][internal quotation marks omitted]; Princetel, LLC v Buckley, 95 AD3d 855, 856 [2d Dept 2012]).

In their motion for partial summary judgment, defendants contended that as a matter of law the limitation of liability provision in the contract is controlling. A clear contractual provision limiting damages is enforceable unless there is a special relationship between the parties, there is a statutory prohibition against it, or it is against public policy because the [*3]conduct of the party seeking to enforce it was grossly negligent (see Astoria Generating Co., LP v Riley Power, Inc., 179 AD3d 987, 988 [2d Dept 2020]; Sommer v Fed. Signal Corp., 79 NY2d 540, 553-554 [1992]).

Gross negligence, when invoked to pierce an agreed-upon limitation of liability in a commercial contract, is conduct that smacks of intentional wrongdoing or evinces a reckless indifference to the rights of others (see id.; Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377, 384 [1983]). Thus, to meet its prima facie burden on summary judgment enforcing a limitation of liability provision, the movant, in addition to establishing a lack of special relationship and statutory prohibition, must demonstrate that there are no triable issues of fact that the provision was not against public policy such that its conduct did not amount to intentional wrongdoing or reckless indifference to the rights of others (see Astoria Generating Co., LP, 179 AD3d at 988; Colnaghi, U.S.A., Ltd. v Jewelers Protection Services, Ltd., 81 NY2d 821, 823 [1993]).

In Princetel, the plaintiff commenced an action against the defendants to recover damages for breach of contract and negligence in connection with the defendants' performance of certain land surveys (95 AD3d at 855). Each of the contracts between the parties included a limitation of liability provision which purported to limit the defendants' liability to the plaintiff to the price that the plaintiff paid for the services (see id.). The Second Department affirmed the Supreme Court's order granting defendants' motion for summary judgment and limited their liability to the plaintiff to the prices set forth in the subject contracts. The court determined defendants met their prima facie burden by establishing that the complaint did not allege defendants performed the work in a willful or grossly negligent manner and that the complaint did not allege any conduct by the defendants that would support such a claim (see Princetel, 95 AD3d at 855).

Similarly, here, the contract between the parties included a limitation of liability provision which sought to limit the defendants' liability to the plaintiff to $50,000 or the total amount of compensation received, whichever is greater. The defendants contended a review of the complaint revealed plaintiff failed to allege gross negligence or that defendants performed the work expected by the contract in a willful or grossly negligent manner. Defendants, therefore, met their prima facie burden (see Weidenbenner v Stern, 263 AD2d 453, 454 [2d Dept 1999]; Astoria Generating Co., LP v Riley Power, Inc., 179 AD3d 987, 989 [2d Dept 2020]).

In opposition, plaintiff argued the motion was premature and further discovery is necessary to develop evidence regarding defendants' negligence and/or gross negligence. However, plaintiff offered no evidentiary basis that discovery may lead to relevant evidence or that the facts essential to justify opposition were exclusively within the knowledge and control of the defendants (Anne Koplick Designs, 76 AD3d at 535; Princetel, 95 AD3d at 856). Therefore, plaintiff failed to raise an issue of fact (see id.). Accordingly, defendants' motion for partial summary judgment on the issue of enforceability of the limitation of liability provision is granted (see id.).

Defendants also sought partial summary judgment dismissing plaintiff's cause of action for unjust enrichment as duplicative of plaintiff's breach of contract claim. The basis of a claim for unjust enrichment is that the defendant has obtained a benefit which in "equity and good conscience" should be paid to the plaintiff (see Corsello v Verizon New York, Inc., 18 NY3d 777, 790 [2012]). It is available only in unusual situations when, though the defendant has not breached a contract nor committed a recognized tort, circumstances create an equitable [*4]obligation running from the defendant to the plaintiff (see id.). An unjust enrichment claim is not available where it simply duplicates, or replaces, a conventional contract or tort claim in that it is based on the same facts and seeks essentially identical damages (see id.; Guzman v Ramos, 191 AD3d 644 [2d Dept 2021]). Thus, to succeed on summary judgment, the defendants must demonstrate that plaintiff's unjust enrichment claim is based on the same facts as its breach of contract claim and seeks essentially identical damages (see Fortune Limousine Serv., Inc. v Nextel Communications, 35 AD3d 350, 353 [2d Dept 2006]; Guzman, 191 AD3d at 644).

Here, defendants argued the claims are duplicative. The Court agrees (see Guzman, 191 AD3d at 644; Corsello, 18 NY3d at 790). Plaintiff alleged in its breach of contract claim that it entered into a contract with defendants for engineering services in connection with construction of the subject building. Plaintiff alleged defendants breached the terms of the contract by failing to provide services with the requisite care, resulting in delay and loss of revenue. Plaintiff's claim for unjust enrichment repeated the aforementioned allegations and added plaintiff paid fees to other entities, not for its benefit "but in connection with defendants' negligence, professional malpractice and breach of contract." Therefore, defendants met their burden (see id.). Plaintiff, in opposition, failed to provide any proof to the contrary and thus failed to raise an issue of fact. Accordingly, plaintiff's unjust enrichment claim is dismissed (see Corsello, 18 NY3d at 791).

Defendants also sought partial summary judgment dismissing plaintiff's cause of action for professional malpractice/negligence as duplicative of its breach of contract claim. To prove a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries (see Coral v State, 29 AD3d 851 [2d Dept 2006]). To maintain a claim for professional malpractice, the plaintiff must demonstrate defendants owed it a duty independent of any contractual relationship (see Dormitory Auth. v Samson Constr. Co., 30 NY3d 704, 711 [2018]). However, "where plaintiff is essentially seeking enforcement of the bargain, the action should proceed under a contract theory" (id.). Thus, to succeed on summary judgment dismissing a cause of action for professional malpractice/negligence as duplicative of a contract claim, the movant must demonstrate that both claims alleged the same injury or essentially seek enforcement of the contract (see Dormitory Auth., 30 NY3d at 713).

Here, defendants argued that plaintiff alleged defendants agreed to perform services, pursuant to their contract and the applicable professional standard of care for an engineer, and breached that duty. Defendants further argued that plaintiff alleged defendant was professionally negligent and committed malpractice in failing to perform its duties under the same standard of care. Thus, defendants contended, plaintiff's professional/malpractice claim is merely a restatement of the contractual obligations asserted in its breach of contract claim, which sought to enforce the contract. Defendants thus met their prima facie burden (see Dormitory Auth., 30 NY3d at 711). In opposition, plaintiff failed to raise a triable issue of fact (see id.). Accordingly, plaintiff's claim for professional malpractice/negligence is dismissed.

Accordingly, defendants' motion for partial summary judgment is granted.

E N T E R:

____________________

Hon. Reginald A. Boddie

Justice, Supreme Court