Nelson & Pope Eng'rs & Land Surveyors, PLLC v. Pinewood Dev. Corp.
| Citation | 57 N.Y.S.3d 675 (Table) |
| Decision Date | 15 February 2017 |
| Docket Number | No. 12–34085.,12–34085. |
| Parties | NELSON & POPE ENGINEERS AND LAND SURVEYORS, PLLC, d/b/a Nelson & Pope Engineers and Surveyors and Nelson, Pope & Voorhis, L.L.C., Plaintiffs, v. PINEWOOD DEVELOPMENT CORP. and Uri Hason, Defendants. |
| Court | United States State Supreme Court (New York) |
Sinnreich Kosakoff & Messina, L.L.P., Central Islip, for Plaintiffs.
Jonathan Fisher, Esq., New York, for Defendants.
Upon the following papers numbered 1 to 45 read on this motion for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers 1–25; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 26–31; Replying Affidavits and supporting papers 32–45; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that the motion by the plaintiffs for an order pursuant to CPLR 3212 granting summary judgment in their favor and dismissing the defendants' counterclaim is granted to the extent set forth herein; and it is further
ORDERED that upon a search of the record pursuant to CPLR 3212(b), summary judgment is granted in favor of the defendants dismissing the plaintiffs' second and fourth causes of action; and it is further
ORDERED that the causes of action as to which partial summary judgment is granted herein are set down for a trial on the assessment of the plaintiffs' damages, costs, and attorney's fees.
The plaintiffs commenced this action to recover monies allegedly due and owing for professional services rendered to the defendant Pinewood Development Corp. (Pinewood) and the defendant Uri Hason (Hason)(collectively, the defendants). It is undisputed that the plaintiffs are in the business of providing engineering and related services to clients in connection with, among other things, real estate development projects, that Pinewood is in the business of developing such projects, and that Hason is currently the sole principal of Pinewood. Initially, the two plaintiffs commenced separate actions seeking to recover for services allegedly rendered to the defendants. Although based on slightly different factual allegations, the complaints in each action are essentially the same. By order dated February 6, 2014, the Court (Tarantino, J.) consolidated the two actions under the present caption.
In their complaints, the plaintiffs set forth five causes of action: the first, for breach of contract, the second, for an account stated, the third, for quantum meruit, the fourth, to pierce the corporate veil, and the fifth for attorney's fees and other costs. The defendants have interposed answers denying the material allegations in the complaints and asserting various affirmative defenses and a single counterclaim. The plaintiffs now move for summary judgment in their favor for the relief demanded in the complaint and for dismissal of said counterclaim. In support of their motion, the plaintiffs submit the pleadings, affidavits from two of their employees, the transcript of Hason's deposition, copies of the purported contracts between the parties, and the invoices allegedly sent to the defendants for the work performed.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986] ; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985] ). The burden then shifts to the party opposing the motion who must produce evidentiary proof in admissible form sufficient to require a trail of the material issues of fact ( Roth v. Barreto, 289 A.D.2d 557, 735 N.Y.S.2d 197 [2d Dept 2001] ; Rebecchi v. Whitmore, 172 A.D.2d 600, 568 N.Y.S.2d 423 [2d Dept 1991] ; O'Neill v. Town of Fishkill, 134 A.D.2d 487, 521 N.Y.S.2d 272 [2d Dept 1987] ). Furthermore, the parties' competing interest must be viewed "in a light most favorable to the party opposing the motion" ( Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610, 563 N.Y.S.2d 449 [2d Dept 1990] ).
In his affidavit, Victor Bert (Bert) swears that he was a partner at the plaintiff Nelson & Pope Engineers and Land Surveyors, PLLC, d/b/a Nelson & Pope Engineers and Surveyors (N & P) and Nelson, Pope & Voorhis, LLC (NPV)(collectively, the plaintiffs), that he is a registered Professional Engineer, and that N & P and NPV contracted over the years with the defendants to provide engineering services for their development projects. He indicates that this litigation involves four projects given the designations Pinewood Terrace, Arnold Drive, Beach Lane and the Preserve at Woodbury, and that the defendants never expressed any dissatisfaction with the work performed for those projects nor objected to the invoices generated from the work. He states that the plaintiffs contracted with the defendants to provide services regarding Pinewood Terrace in 2006 and 2007, that the plaintiffs duly billed for those services in six invoices dated from April 27, 2006 to June 27, 2008, and that the defendants made partial payments on only four of the invoices, leaving a balance of $12,889.94 due and owing. Bert further swears that the plaintiffs contracted with the defendants to provide services regarding Arnold Drive in 2003 and 2007, that the plaintiffs duly billed for those services in eighteen invoices dated from November 8, 2006 to June 27, 2008, and that the defendants did not pay any of the invoices, leaving a balance of $97,312.05 due and owing. He states that N & P entered into an oral contract with Hason to provide services in connection with Hason's private residence at Beach Lane in 2009, that an invoice was sent to Pinewood at Hason's direction, and that the defendants have not objected to, nor paid, that invoice, leaving a balance of $2,575 due and owing. He attests that the plaintiffs contracted with the defendants to provide services regarding the Preserve at Woodbury in 2008, that the plaintiffs duly billed for those services in an invoice dated September 28, 2008, and that the defendants have not objected to, nor paid, that invoice, leaving a balance of $3,300 due and owing. Bert further swears that the plaintiffs' billing rates are set forth in the subject "contracts/proposals," that the plaintiffs' invoices set forth the late charges and other costs due upon the failure to pay in a timely manner, and that the defendants retained those invoices without objection for a number of years. He declares that the billing rates charged to the defendants are "reasonable and customary in the industry," that the subject invoices were "generated by our accounting department and billing department and sent to Defendants' business address as the services were performed," and that "as of March 31, 2016, the grand total of $335,330.84 is due and owing" to the plaintiffs.
In his affidavit, Terence Beggins (Beggins) swears that he is the controller and head of the accounting departments for the plaintiffs, and that the plaintiffs' "general billing practice and procedure" includes generating an invoice and "to then ... mail out the invoice rendered to the client's address." He indicates that each invoice provides that all invoices that the subject invoices were sent by first class mail to the attention of Hanson at Pinewood's address, and that none of the invoices was returned to the plaintiffs' offices. He states that the invoices for the four projects, less some partial payments, leaves a balance of $116,076.99, that late charges amount to $191,565.98, that pre-judgment interest amounts to $27,687.87, and that "as of March 31, 2016, the grand total of $335,330.84 is due and owing from Pinewood and/or Hason to N & P and NPV."
At his deposition, Hason testified that he has been the president of Pinewood since 2000, that he is the only officer and the sole shareholder of the corporation, and that Mark Freedman (Freedman) was a "co-president" of the corporation from 2005 to 2011. He essentially testified that he did not recall receiving, paying, or objecting to the Pinewood Terrace invoices, that he did not recall making any partial payments of any such invoices, and that the only reason he could give for any partial payments was an "adjustment in the invoice because of the movercharge." He stated that it is his signature on the alleged contract/proposal for Pinewood Terrace, that the document is not a contract but a "menu" that allows him to order the services he needs, and that he remembers that the plaintiffs performed some engineering work for this project. He indicated that he engaged N & P to prepare a survey of his residence, that he did not recall receiving, paying, or objecting to the Beach Lane invoice, that he did not remember if the invoice was paid, and that he never saw the purported contract/proposal from the plaintiffs regarding the Preserve at Woodbury.
Hason further testified that Freedman returned a fully executed agreement regarding Arnold Drive in a cover letter dated May 21, 2007, that he received the invoices dated November 8, 2006 and December 29, 2006 regarding Arnold Drive, and that the plaintiffs performed the work reflected on the invoices, which he then paid. He stated that he did not recall receiving, paying, or objecting to the sixteen remaining Arnold Drive invoices, that he did contest a summary of the invoices sent by the plaintiffs sometime thereafter, and that he did not order or authorize the plaintiffs to do any work on Arnold Drive beyond that reflected in the first two invoices. He indicated that he retained Michael McCarthy, Esq. (McCarthy) to represent Pinewood regarding the Arnold Drive development project, that McCarthy met with the local municipality once or twice and realized that the project could not be built, and that the...
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