ACC Concrete Corp. v. Core Cont'l Constr., LLC
| Decision Date | 21 August 2013 |
| Docket Number | Index No. 600822/2010 |
| Parties | ACC CONCRETE CORP., Plaintiff v. CORE CONTINENTAL CONSTRUCTION, LLC, MARIGOLD LLC, and BANK OF EAST ASIA (USA) N.A., Defendants |
| Court | New York Supreme Court |
DECISION AND ORDER
I. BACKGROUND
Plaintiff, an excavation and foundation subcontractor, sues defendants to recover $183,000.00, $18,000.00 for original work and $165,000.00 for extra work and equipment, that plaintiff provided on a construction project on premises owned by defendant Marigold LLC, for which defendant Core Continental Construction, LLC (CCC), was the general contractor. Plaintiff claims four legal bases on which it is entitled to payment. The first claim seeks damages against CCC for breach of contract. The second claim seeks recovery against CCC, and the third claim seeks recovery against Marigold, both based on quantum meruit or unjust enrichment. The fourth claim is on behalf of a proposed class under New York Lien Law § 77 to recover funds held in trust for the project by defendant Bank of East Asia. The court previously granted Bank of East Asia's motion to dismiss and Marigold's cross-motion for summary judgment dismissing plaintiff's fourthclaim against these defendants. C.P.L.R. §§ 3211(a)(7); 3212(b) and (e). Therefore no claim remains against Bank of East Asia.
All remaining parties move for summary judgment. C.P.L.R. § 3212(b). Marigold moves for summary judgment dismissing the quantum meruit or unjust enrichment claim against Marigold: the complaint's third claim and only remaining claim against this defendant. Plaintiff separately moves for summary judgment on all the complaint's remaining claims, all against CCC. In response to plaintiff's motion, CCC cross-moves for summary judgment dismissing plaintiff's claims against this defendant. For the reasons explained below, the court grants Marigold's and plaintiff's motions and CCC's cross-motion in part, but otherwise denies the parties' motions and cross-motion.
II. APPLICABLE STANDARDS
The moving parties, to obtain summary judgment, must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Veaa v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012); Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384 (2005); Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81 (2003). If the moving parties satisfy this standard, the burden shifts to the opponent to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. Morales v. D & A Food Serv., 10 N.Y.3d 911, 913 (2008); Hvman v. Queens County Bancorp, Inc.,3 N.Y.3d 743, 744 (2004). In evaluating the evidence for purposes of the parties' motions, the court construes the evidence in the light most favorable to the opponent. Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; Cahill v. Triborouqh Bridge & Tunnel Auth., 4 N.Y.3d 35, 37 (2004).
CCC alternatively moves to dismiss plaintiff's claims against it based on the complaint's failure to state a cause of action, C.P.L.R. § 3211(a)(7), but CCC nowhere identifies any defect in the claims as pleaded. For dismissal of the fourth claim, discussed below, CCC relies on the earlier decision concluding that Marigold never received any funds from Bank of East Asia. Otherwise, CCC contends that documentary evidence negates plaintiff's claims against this defendant. C.P.L.R. § 3211(a)(1). Because CCC supports its defense based on documentary evidence with deposition testimony, which is not documentary evidence under C.P.L.R. § 3211(a)(1), the court denies CCC's motion insofar as it seeks dismissal under C.P.L.R. § 3211(a)(7) or under § 3211(a)(1). Correa v. Orient-Express Hotels, Inc., 84 A.D.3d 651 (1st Dep't 2011); Weil Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 271 (1st Dep't 2004). See Flowers v. 73rd Townhouse LLC, 99 A.D.3d 431 (1st Dep't 2012).
III. TIMELINESS OF THE MOTIONS
Since plaintiff filed a note of issue February 3, 2012, the deadline for summary judgment motions was Monday, June 4, 2012. C.P.L.R. § 3212(a). Marigold made its motion when it was servedtimely May 30, 2012. C.P.L.R. § 2211; Esdaille v. Whitehall Realty Co., 61 A.D.3d 435, 436 (1st Dep't 2009); Gazes v. Bennett, 38 A.D.3d 287, 288 (1st Dep't 2007).
CCC's cross-motion for summary judgment served June 26, 2012, was untimely. C.P.L.R. § 3212(a). The court may consider CCC's cross-motion, however, because it was in response to plaintiff's timely motion for summary judgment and seeks summary judgment dismissing the same claims on which plaintiff seeks a judgment in plaintiff's favor. Alonzo v. Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 A.D.3d 446, 448-49 (1st Dep't 2013); Palomo v. 175th St. Realty Corp., 101 A.D.3d 579, 581 (1st Dep't 2012); Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 71 A.D.3d 538, 540 (1st Dep't 2010); Filannino v. Triboroucrh Bridge & Tunnel Auth., 34 A.D.3d 280, 281 (1st Dep't 2006) .
IV. BREACH OF CONTRACT CLAIM AGAINST CCC
To establish breach of a contract, plaintiff must show a contract, that plaintiff performed and CCC breached the contract, and that CCC's breach caused plaintiff to sustain damages. Harris v. Seward Park Hous. Corp., 79 A.D.3d 425, 426 (1st Dep't 2010). See Tutora v. Siegel, 40 A.D.3d 227, 228 (1st Dep't 2007) . Plaintiff must plead the specific terms of the agreement that CCC breached. Marino v. Vunk, 39 A.D.3d 339, 340 (1st Dep't 2007); Giant Group v. Arthur Andersen LLP, 2 A.D.3d 189, 190 (1st Dep't 2003); Kraus v. Visa Intl. Serv. Assn., 304 A.D.2d 408 (1st Dep't 2003). The absence of agreement on a material term of thecontract renders it unenforceable even if the parties intended to be bound by it. Zhencr v. City of New York, 93 A.D.3d 510, 512 (1st Dep't 2012); Gessin Elec. Contrs., Inc. v. 95 Wall Assoc., LLC, 74 A.D.3d 516, 519 (1st Dep't 2010).
The parties do not dispute an oral contract between CCC and plaintiff for the project's excavation and foundation work. Plaintiff's president Anthony Isola testified at one point in his deposition that the agreed cost for this work was $138,000.00, but later in the same deposition that the agreed cost was only $130,000.00. Aff. of Vincent Ieraci Ex. 6, at 28, 87. Although Chun Lin Chiang, one of CCC's two members, testified at his deposition that the agreed cost ranged from $110,000.00 to $120,000.00, id. Ex. 5, at 23, his later affidavit agrees with Isola's testimony that the cost was $130,000.00.
While both CCC and Marigold contend that plaintiff failed to perform the full scope of the specified excavation work because plaintiff excavated only eight feet deep, instead of the ten feet in the plan specifications, CCC does not allege any defense or counterclaim based on plaintiff's nonperformance to undermine its breach of contract claim for the excavation. Dorfman v. American Student Assistance, 104 A.D.3d 474 (1st Dep't 2013); Sun Gold, Corp. v. Stillman, 95 A.D.3d 668, 669 (1st Dep't 2012); ASKL Enters., Inc. v. NYNEX Loner Distance Co., 7 A.D.3d 424, 425 (1st Dep't 2004). See Sheridan v. Trustees of Columbia Univ. in City of N.Y., 296 A.D.2d 314, 315 (1st Dep't 2002). In any event, thedeposition testimony by Isola and Chiang establishes that Chiang advised plaintiff to excavate to only eight feet to save costs and that plaintiff credited CCC $12,000.00 due to the shallower excavation.
Since plaintiff admits that the cost was as low as $130,000.00, and CCC admits that the cost was as high as that amount, and both parties agree that CCC paid plaintiff $100,000.00 and that plaintiff credited CCC $12,000.00 against the agreed price, the record leaves no issue regarding plaintiff's entitlement to $18,000.00 for the excavation and foundation work. Therefore the court grants plaintiff summary judgment on plaintiff's breach of contract claim against CCC for $18,000.00, based on plaintiff's oral contract with CCC for that original work, and denies CCC's cross-motion for summary judgment dismissing that part of the first claim. C.P.L.R. § 3212(b) and (e).
Regarding the rock removal, Isola and Chiang both testified that plaintiff discovered rocks after it started work on the project, contrary to a soil boring report provided by Marigold that indicated the absence of rocks in the soil to be excavated. Because the parties did not expect to encounter rocks when plaintiff and CCC orally contracted for the excavation and foundation work, and that contract did not provide for additional or extra work, see A.H.A. Gen. Constr. v. New York City Hous. Auth., 92 N.Y.2d 20, 24-25 (1998), rock removal was beyond thescope of plaintiff's and CCC's original contract.
The deposition testimony by Isola and Chiang reveals, however, that plaintiff continued removing rocks at CCC's direction and with its assurance of payment, but without establishing whether CCC, Marigold, or both would pay for the rock removal. The deposition testimony specifically shows that the parties never reached an agreement on the amount plaintiff would be paid for this rock removal, a material term necessary to form a contract. Schutty v. Speiser Krause P.C., 86 A.D.3d 484, 485 (1st Dep't 2011); John Anthony Rubino & Co., CPA, P.C. v. Swartz, 84 A.D.3d 599 (1st Dep't 2011); Tringle v. Tringle, 40 A.D.3d 353 (1st Dep't 2007).
While Isola presented invoices for the rock removal expenses to CCC, and Chiang presented a change order for rock removal expenses to Marigold's president Henry Ting, plaintiff does not claim an account stated, and Marigold never signed the change order to form a contract obligating Marigold to pay those expenses or otherwise allocating payment. Susko v. 337 Greenwich LLC, 103 A.D.3d 434,...
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