Hudson Meridian Constr. Group, LLC v H&H Woodworking Inc.

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Hudson Meridian Constr. Group, LLC v H&H Woodworking Inc. 2023 NY Slip Op 33218(U) September 14, 2023 Supreme Court, New York County Docket Number: Index No. 151267/2016 Judge: Lucy Billings 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. 151267/2016 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 09/18/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: 41 ------------ ------------ --- -----------x HUDSON MERIDIAN CONSTRUCTION GROUP, LLC, Index No. 151267/2016 Plaintiff. DECISION AND ORDER -againstH&H WOODWORKING INC., Defendant ------------- ------------- ------------- x ------------- ------------- ------------- x H&H WOODWORKING INC., Third Party Plaintiff -againstWESTCHESTER FIRST INSURANCE COMPANY, "JOHN DOE NO. lu through "JOHN DOE NO. 5,u "ABC CORP.,n "DEF CORP.,n and· "GHI CORP.," Third Defendants --x. LUCY BILLINGS, J.S.C.: I. BACKGROUND The parties' dispute relates to a construction project at a residential apartment bui1ding at 60'East 86th Street, New York County. Plaintiff, the construction manager, subcontracted with defendant to perform construction work bn the project. planned value of the subcontract was $1,375,000. The total Plaiptiff paid defendant $221,625 and terminated the subcontract because hudsonmeridian923 [* 1] 1 2 of 9 \ INDEX NO. 151267/2016 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 09/18/2023 defendant had not timely performed any physical work on the site. Plaintiff covered defendarit'.s work by hiring another contractor, at a cost of $1,884,930. Plaintiff claims defendant's breach of the subcontract. and unjust enrichment'. Defendant countercl~ims for plaintiff's breach of the subcontract, an account stated, unjust enricbment, and quantum meruit, contending that defendant billed plaintiff on or about February Tl, 2016, seeking $381,120 for completed work, which plaintiff failed to pay. Defendant further counterclaims fo~ foreclosure of defendant's mechanic's lien and also.instituted the same claim in a third party attion against Westchester Fire Insurance Company as plaintiff's surety and against any unknown individuals or entities with an interest in the real property at. issue. Plaintiff and third party defendant Westchester Fire Insurance now move for summary 'judgment on the complaint's claims and dismissing defendant's counterclaims and third party claim based on defendant's failuie to perform the subcontract between the plaintiff and defendant. At oral argument January 11, 2023, both plaintiff and defendant discontinued their·unjust enrichment and quantum meruit claims, leaving the breach of contract claim and counterclaim and the account stated and lien foreclosure counterclaims; hudsonmeridian923 [* 2] 2 3 of 9 INDEX NO. 151267/2016 NYSCEF DOC. NO. 171 t-...._ ,;,....... II. RECEIVED NYSCEF: 09/18/2023 SUMMARY JUDGMENT STANDARDS To obtain summary judgment, plaintiff and third party- defendant must make a prima facie showing of entitlement to judgment as a matter of la~ through admissible evidehce eliminating all material factual issues. C.P.L.R. § 3212(b); Bill Birds, Inc. v. Ste~n Law Firm, P.C., 35 N.Y.3d 173, 179 (2020); Friends of Thayer Lake LLC v. Brown, 27 N.Y.3d 1039, 1043 (2016); Nomura As~et Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 49 (2015); Voss v. Netherlands Ins. Co., 22 N.Y.3d 728, 734 (2014). If the moving parties fail to make this evidentiary showing, the court must deny the motion. Voss v. Netherlands Ins. Co., 22 N.Y.3d at 734; William J. Jeriack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 475 (2013); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012); Dorador v. Trump Palace Condo., 190 A.D.3d 479, 481 (1st Dep't 2021). Only if the moving parties meet this initial burden, does the burden shift to the defendant to rebut that prima facie showing by producing admissible evidence sufficient to require a trial of material factual issues. Bill Birds, Inc. v. Stein Law Firm, P.C., 35 N.Y.3d at 179; De Lourdes Torres v. Jones, 26 N.Y.3d 742 1 763 (2016); Nomura A~set Capital Corp. v. Cadwalader Wickersham & Taft LLP, 26 N.Y.3d at 49; Morales v~ D & A Food Serv., 10 N.Y.3d 911, 913 (2008). In e~aluating the evidence for purposes of the summary judgment motion, the court hudsonmeridian923 [* 3] 3 4 of 9 INDEX NO. 151267/2016 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 09/18/2023 ( . \. construes the evidence in the lighi most favorable to defendant. ,· Stonehill Capital Mgt. LLC v. Bank of the W., 28 N~Y.3d 439, 448 v. (2016); De Lourdes Torres Jenack Estat~ Appr~isers & Jones, 26 N.Y.3d ~t 763; William J. Auctioneers. Inc. v. Rabizadeh, 22 N.Y.3d at 475; Vega v. Restani Constr. Corp.~ 18 N.Y.3d at 503. III. BREACH OF CONTRACT-CLAIM AND COUNTERCLAIM To establish breach of a contract, a party must decionstrate a contract, that party's performance, the opposing party's breach, and damages from the breach. Alloy Advisory. LLC v. 503 W. 33rd St. Assocs .• Inc., 195 A.D.3d 436, 436 (1st Dep't 2021). The parties do not dispute the validity of the subcontract be~ween plaintiff and defendant and stipulate that the subcontract plaintif-.f presents is authenticated and admissible. Plaintiff claims that defendci.nt failed to complete the work and announced its intention not to continue, constituting an anticipatory breach of the subcontract. As evidence of defendant's repudiatibn, plaintiff relies on an email dated January 27, 2016, by David Cannizzo from defendant, declaring that: "Its [sic] all legal now. The job is stopped 100% .. " of Stephen Schiavone Ex. M, NYSCEF Doc. No. 60. Aff. ' Plaintiff's ( witness Stephen Schiavone, did not·receive the email and thus is incompetent to authenticate it, nor does any other witness authenticate it as a communication sent or received, even if not offered for its truth. hudsonmeridian923 [* 4] Clarke v. American Truck 4 5 of 9 & Trailer, Inc., INDEX NO. 151267/2016 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 09/18/2023 - - - .• •-c- ·---·----- 171 A.D.3d 405, 406 (1st Dep't 2019); Kenneth J. v. Lesley B., 165 A.D.3d 439, 440 (1st Dep't 2018); B Ashkenazi, 149 A.D.3d 401, 403 n.2 & H Florida Notes LLC v. (1st Dep't 2017); AO Asset Mgt. LLC v. Levine, 128 A.D.3d 620, 621 (1st Dep't 2015). Plaintiff also points to defendant's failure to obtain approval by th~ project owner's architect of shop drawings, failure to provide a schedule for completion of defendant's work, and failure to complete the work on schedule, as material breaches. According to the subcontract, however, defendant owed no obligation to submit drawings to the owner.' s architect. Schiavone Aff. Ex. D, NYSCEF Doc. No; 51, § 5.1. Defendant was to provide the drawings to plaintiff, not the owner's architect. Therefore defendant's failure to provide drawings to the architect does not constitute a breach. Plaintiff presents an email exch~nge from January through February 2016 in which plaintiff and defendant dispute dates for completing work, who is first obligated to provide information to whom, and when defendant would have access to the site to take field measurements necessary to provide a schedule for completion of defendant's work and to complete the work on schedule. Aff. of Stephen Schiavone, Ex. V, NYSCEF Doc. No. 166. Reply This evidence raises factual issues as to whether plaintiff piovided defendant all the required information and access to allow defendant to complete its contractual obligations. hudsoruneridian923 [* 5] 5 6 of 9 Plaintiff INDEX NO. 151267/2016 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 09/18/2023 thus has not eliminated all material factual issues whether plaintiff breached its obligations under the subcontract or procured defendant's breach of its obligations to provide drawings and schedules or io complete the planned work by an agreed time. Therefore the court denies plaintiff summary judgment on ~ts claim an~ dismissing defendant's counterclaim for breach of the subcontract. IV. C.P.L.R. § 3212(b). ACCOUNT STATED COUNTERCLAIM Defendant's account stated counterclaim requires deiendant to show that it sent invoices to plaintiff to which plaintiff failed to object. Garr Silpe. P.C. v. Weir, 208 A.D.3d 1098, 1099 (.1st Dep't 2022); Anderson Kill. P.C. ~- Bd. of Mgrs. ·of Honto 88 Condominium, 192 A.D.3d 551, 551 (1st Dep't 2021). The parties do not dispute that plaintiff sent defendant an invoice dated February 11, 2016, seeking $381,120. Plaintiff contends that it already had sent a notice of default February 9, 2016, Schiavone Aff. Ex. N, ·NYSCEF No. 61, and then sent a notice of termination for defendant's material brea~h of the sublease February 15, 2016, id. Ex. P, NYSCEF Doc. No. 63, which operated to dispute the alleged debt. Schiavone does authenticate both notices. An account stated claim r·esolves the amount of a liability when the liability is established. Michael J. Devereaux & Assocs .• P.c.· v. Tufo, 192 A.D.3d 506, 506 (1st Dep't 2021). hudsonmeridian923 [* 6] 6 7 of 9 An INDEX NO. 151267/2016 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 09/18/2023 account stated claici may not circumvent the require~ents for establishing the underlying breach of the subcontract. Intl. Sec., Ltd. v. Vulcan C~pital Mgt., Inc., Sabre 95 A.D.3d 434, 438 (1st Dep't 2012); Unclaimed Prop. Recovery Serv., Inc. v. UBS PaineWebber Inc., 58 A.D.3d 526, 526 (1st Dep't 2009). Plaintiff's notices include its intent to deduct payment. for work related to the construction of railings, f9r which the unpaid invoice seeks payment. Even if plaintiff's notices of default and termination did not operate to dispute the alleged debt, defendant does not rebut that each notice also specifically objected to at least part of the unpaid invoice. ihus the account stated counterclaim attempts to circumvent the contractual dispute. Therefore the- court grants plaintiff summary judgment dismissing defendant's counterclaim for an account stated. V. C.P.L.R. § 3212(b) and (e). LIEN FORECLOSURE COUNTERCLAIM Plaintiff and third party defendant· seek summary judgment. dismissing defendant's lien foreclosure counterclaim and third party claim because the claim depends on defendant's right to pay~ent under the subcontract, which fails due to defendant'~ breach of that contract. Since the court denies summary judgment on plaintiff's breach of contract claim, however, this counterclaim survives. hudsonmeridian923 [* 7] 7 8 of 9 INDEX NO. 151267/2016 NYSCEF DOC. NO. 171 VI. RECEIVED NYSCEF: 09/18/2023 CONCLUSION \ For the reasons explained above, the court grants plaintiff's motion for summary judgment dismissing defendant's account stated counterclaim, but otherwise denies plaintiff's motion. C.P.L.R. § 3212(b) and (e). Defendant also discontinues its unjust enrichment and quantum meruit counterclaim, in exchange for plaintiff's discontinuance of its unjust ~nrichment 3 21 7 (a) ( 2 ) and ( b) . claim. C. P • L >R. DATED: September 14, 2023 § LUCY BILLINGS, J.S.C. hudsonmeridian923 [* 8] 8 9 of 9

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