Arista A.C. Corp. v NAF Constr. Mgt., LLC

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Arista A.C. Corp. v NAF Constr. Mgt., LLC 2022 NY Slip Op 33469(U) October 14, 2022 Supreme Court, New York County Docket Number: Index No. 156306/2021 Judge: Paul A. Goetz 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. INDEX NO. 156306/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/14/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. PAUL A. GOETZ Justice ----------------------------------------------------------------- ----------------X ARISTA AIR CONDITIONING CORP., INDEX NO. MOTION DATE Plaintiff, 47 156306/2021 06/27/2022 001 MOTION SEQ. NO. - V - NAF CONSTRUCTION MANAGEMENT, LLC and HFZ 235 WEST 75TH STREET OWNER LLC, DECISION + ORDER ON MOTION Defendants. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 15, 16, 17, 18, 19, 20,21 were read on this motion to/for JUDGMENT - DEFAULT Plaintiff Arista Air Conditioning Corp. commenced this action for breach of contract, unjust enrichment and to foreclose on a mechanic's lien in the amount of $93,256.52 for construction services rendered to defendant NAP Construction Management, LLC (NAP) at a property owned by defendant HFZ 235 West 75th Street Owner, LLC (HFZ). HFZ has interposed an answer with counterclaims (NY St Cts Elec Filing [NYSCEF] Doc No. 10). Plaintiff moves, pursuant to CPLR 3215, for a default judgment against NAP for its failure to timely answer or otherwise appear in this action. NAP has not submitted any opposition. An application for a default judgment must be supported with "proof of service of the summons and the complaint[,] ... proof of the facts constituting the claim, [and] the default" (CPLR 3215 [f]). The affidavit of service sworn to July 12, 2021 shows that plaintiff served NAP with process pursuant to Limited Liability Company Law § 303 by delivering duplicate copies of the amended summons and amended verified complaint, amended notice of pendency and notice of electronic filing to the Secretary of State on July 9, 2021 (NYSCEF Doc No. 7). 156306/2021 ARISTA AIR CONDITIONING CORP. vs. NAF CONSTRUCTION MANAGEMENT, LLC ET AL Motion No. 001 [* 1] 1 of 4 Page 1 of4 INDEX NO. 156306/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/14/2022 Plaintiff has demonstrated that NAP has not appeared or answered the complaint within 30 days of that date or sought an extension of time to do so. Plaintiff has also shown that it served NAP with a notice of default and an additional copy of the amended summons by mail on May 3, 2022 (NYSCEF Doc No. 12; NYSCEF Doc No. 20, Rosalyn Maldonado [Maldonado] affirmation, Ex C). Turning to the merits, a cause of action for breach of contract requires the existence of a valid contract, the plaintiff's performance, the defendant's breach and resulting damages (Harris v Seward Park Haus. Corp., 79 AD3d 425,426 [1st Dept 2010]). Plaintiff's proof is insufficient to establish the facts constituting the first cause of action for breach of contract. Plaintiff's chief financial officer, Yvette Gitelman (Gitelman), avers that NAP hired plaintiff on August 28, 2020 to perform certain construction work at a property located at 235 West 75th Street, New York, New York 10023 (the Property), and that plaintiff performed this work "in accordance with the contract" (NYSCEF Doc No. 17, Gitelman aff, ,i,i 1 and 4-6). Gitelman's affidavit and the amended complaint, however, fail to specify whether the contract was an oral or written agreement and fail to detail the specific terms of the contract that NAP allegedly breached (see Manipal Educ. Ams., LLC v Taujiq, 203 AD3d 662, 663 [1st Dept 2022]). For instance, the amended complaint alleges that NAP has failed to pay the contract amount of $93,256.52 (NYSCEF Doc No. 4, ,i 10), but the notice of mechanic's lien reflects a contract amount of $103,618.35 (NYSCEF Doc No. 18, Gitelman aff, Ex A). Gitelman has not stated whether NAP ever made a partial payment. Therefore, plaintiff is not entitled to a default judgment as against NAP on its breach of contract cause of action. A cause of action for unjust enrichment requires a plaintiff to establish that: "( 1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good 156306/2021 ARISTA AIR CONDITIONING CORP. vs. NAF CONSTRUCTION MANAGEMENT, LLC ET AL Motion No. 001 [* 2] 2 of 4 Page 2 of 4 INDEX NO. 156306/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/14/2022 conscience to permit [the other party] to retain what is sought to be recovered" (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182 [2011] [internal quotation marks and citations omitted]). Gitelman avers that plaintiff performed construction services worth $93,256.52, NAP accepted plaintiffs payment applications without objection, and NAP has failed to pay plaintiff (NYSCEP Doc No. 17, ,i,i 7-8). Plaintiffs proof by affidavit is sufficient to establish the facts constituting the second cause of action for unjust enrichment, but only as to liability as plaintiff failed to furnish documentary proof of its damages, such as bills or invoices. As for the third cause of action, plaintiff filed a Notice of Mechanic's Lien in the unpaid amount of $93,256.52 four months after it last performed work at the Property (NYSCEP Doc No. 4, ,i 12; NYSCEP Doc No. 17, ,i 7; NYSCEP Doc No. 18). The notice oflien contains the requisite information required under Lien Law § 9, and plaintiff has shown that the lien has not been discharged (see Lien Law§ 19). Additionally, plaintiff has established that it filed a notice of pendency and commenced a foreclosure action within one year from the filing of the mechanic's lien (see Lien Law § 17). However, a "subcontractor' s right to recover is derivative of the right of the general contractor to recover, and if the general contractor is not owed any amount under its contract with the owner at the time the subcontractor's notice of lien is filed, then the subcontractor may not recover" (C.C.C. Renovations, Inc. v Victoria Tower Dev. Corp., 168 AD3d 664, 666 [2d Dept 2019]; see also Lien Law§ 4 [1]). Here, plaintiffs proof fails to establish that the amount it is owed for the services it provided at the property under the relevant subcontract does not exceed the amount owed by HPZ to NAP. Thus, plaintiff is not entitled to a default judgment on its lien foreclosure cause of action. Accordingly, it is 156306/2021 ARISTA AIR CONDITIONING CORP. vs. NAF CONSTRUCTION MANAGEMENT, LLC ET AL Motion No. 001 [* 3] 3 of 4 Page 3 of 4 INDEX NO. 156306/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/14/2022 ORDERED that the motion by plaintiff Arista Air Conditioning Corp. for a default judgment as against defendant NAF Construction Management, LLC (motion sequence no. 001) is granted but only as to this defendant's liability on the second cause of action, and the balance of the motion is otherwise denied; and it is further ORDERED that the taking of an inquest and the assessment of damages against defendant NAF Construction Management, LLC shall be conducted at the time of the trial against the remaining defendant HFZ 235 West 75th Street Owner, LLC. 10/14/2022 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: PAUL A. GOETZ, J.S.C. ~ CASE DISPOSED GRANTED • NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 156306/2021 ARISTA AIR CONDITIONING CORP. vs. NAF CONSTRUCTION MANAGEMENT, LLC ET AL Motion No. 001 [* 4] 4 of 4 • • OTHER REFERENCE Page4 of 4

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