CJS Indus. v. Highcourt Downtown LLC
| Citation | 2022 NY Slip Op 32788 (U) |
| Decision Date | 15 August 2022 |
| Docket Number | Index No. 153335/2021,Motion Seq. No. 002 |
| Court | United States State Supreme Court (New York) |
| Parties | CJS INDUSTRIES INC., Plaintiff, v. HIGHCOURT DOWNTOWN LLC, ACE WIRE & CABLE CO., INC., BEDROCK PLUMBING & HEATING, INC., CANNON MECHANICAL, INC., COMPLETE CONSTRUCTION CONTRACTING CORP., CONNECT DRYWALL & ACOUSTICS CORP., DAL ELECTRICAL CORPORATION, DJH MECHANICAL CORP., FERGUSON ENTERPRISES, LLC, LIBERTY DOORWORKS, INC., MASPETH WELDING, INC., and SIGNATURE AIR CORP., Defendants. CANNON MECHANICAL, INC. Defendant/Cross-Claimant, v. ATLANTIC SPECIALTY INSURANCE COMPANY Cross-Claim Defendant. |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 002) 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 94, 98, 99 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 116, 118, 119, 120, 121, 122, 123 were read on this motion to/for SUMMARY JUDGMENT.
Plaintiff commenced this action seeking to foreclose on two mechanics liens, which were subsequently bonded, based on work done for High Court Downtown, LLC (High Court) at the building known as 385-387 Broadway, New York, New York. High Court hired CJS as the general contractor. CJS alleges $4,185,047.88 in unpaid invoices are due.
On April 15, 2022, plaintiff moved for summary judgment on the first, third and fourth causes of action in the complaint.
The motion was fully briefed and on August 17, 2022, the court heard oral argument and reserved decision.
For the reasons stated below, the motion is denied.
High Court was to be a leisure club, which was to have its flagship location at 385-387 Broadway, New York. High Court intended to blend social and sporting culture under one roof through active and intelligent leisure - eating, drinking, exercising in small groups, chefs tables, and more. A key element of High Court's business model was its in-person social gathering aspect.
Originally, when High Court took possession of the Premises in November 2018, it undertook it to renovate the Premises for use as a club with a fitness center, spa, roof deck lounge, kitchen, restaurant, retail store, and office space.
On August 8, 2019, High Court and CJS, entered into the Construction Management Agreement (CMA) whereby, CJS served as the construction manager for High Court's renovations to the Premises. During construction, Trevor Stahelski, served as High Court's project manager and liaison between High Court and CJS.
On or about February 28, 2020, a stop work order was issued by DOB due to site violations. The stop work order Was rescinded as of March 9, 2020. On or about March 10, 2020, the project re-opened for roughly 14 days of construction work, until approximately March 25, 2020 when the Governor issued an executive order which ceased all construction work due to the COVID-19 pandemic. The ban on construction continued through June 2020.
During this period Plaintiff had issued invoices that High Court was questioning. On October 15, 2020, High Court's landlord, United Prime Broadway, LLC (Landlord) commenced an action (Landlord Litigation) against High Court alleging, inter alia, breach of contract and sought to eject High Court from the premises. See United Prime Broadway, LLC, v. High Court Downtown, LLC and Michael Novogratz, Index No. 655311/2020. CJS was not a party to that action.
High Court's landlord sought a preliminary injunction to recover possession of the Premises by alleging that High Court had allowed the building to fall into a dangerous state of disrepair. High Court opposed its landlord's motion by telling Justice Cohen that CJS had already completed approximately 71% of the construction work. Specifically, High Court's CEO (Colleen Brooks) swore in an affidavit that "it is undisputed that as of March 17, 2020, [High Court] completed approximately 71% of the required construction work . . . High Court also included copies of CJS' latest invoices as exhibits with its opposition - to make the point to Justice Cohen that High Court's construction project was in much better shape than its landlord was telling Justice Cohen. Michael Novogratz, a High Court director and investor, also weighed in with his own construction professional to confirm the quality and value of CJS' construction work. Mr. Novogratz offered an affidavit from James A. Schwartz, who observed the construction work personally and wrote that "the structural steel work that I observed, first hand, which I understand was performed by High Court's construction professionals, was done with a high level of craftsmanship." Mr. Schwartz also wrote that CJS' construction work enhanced the value of the building.
The motion was resolved by a stipulation that was so-ordered by the court on February 5, 2021. The stipulation did not include a preliminary injunction.
On September 30, 2021, the Landlord Litigation was discontinued pursuant to a stipulation of discontinuance that was not so-ordered by the court.
In order to prevail on a motion for summary judgment, the moving party must establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985); Zuckerman v City of New York, 49 N.Y.2d 557 (1980). Absent such a prima facie showing, the motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]). However, "[o]nce the movant makes the required showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial" (Dallas-Stephenson v Waisman, 39 A.D.3d 303, 306 [1st Dept 2007], citing Alvarez, 68 N.Y.2d at 324). "[A]ll of the evidence must be viewed in the light most favorable to the opponent of the motion" (People v Grasso, 50 A.D.3d 535, 544 [1st Dept 2008]). "On a motion for summary judgment, the court's function is issue finding, not issue determination, and any questions of credibility are best resolved by the trier of fact" (Martin v Citibank, N.A., 64 A.D.3d 477, 478 [1st Dept 2009]; see also Sheehan v Gong, 2 A.D.3d 166,168 [1st Dept 2003] [], citing Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]).
Under the doctrine of judicial estoppel, a party successfully taking a position in one proceeding may not thereafter assume an inconsistent position in a subsequent proceeding, simply because the party's interests have changed [Kalikow 78/79 Co. v. State of New York 174 A.D.2d 7, 11 (1st Dept 1992); Baje Realty Corp. v. Cutler. 32 A.D.3d 307, 310 (1st Dept 2006); Gale P. Elston P.C. v Dubois, 18 A.D.3d 301, 303 (1st Dept 2005)]. Courts apply the doctrine of judicial estoppel to ensure that a party does not adopt a contrary position in another action simply because their interests have changed. See Anonymous v. Anonymous, 137 A.D.2d 739, 741 (2nd Dep't 1988).
The application of the rule is not limited to cases where the legal position at issue was ruled upon in the context of a judgment (D & L Holdings, LLC v. RCG Goldman Co., LLC, 287 A.D.2d 65, 72 [1st Dept 2001], Iv denied 97 N.Y.2d 611 [2001]), it also applies where a party obtains some other type of success or relief through judicial acceptance of his or her position (see Festinger, 32 A.D.3d 412; D & L Holdings, 287 A.D.2d 65; All Terrain Props, v. Hoy, 265 A.D.2d 87 [1st Dept 2000]; see also Bianchi v. N.Y. State Div. of Hous. & Community Renewal, 5 A.D.3d 303 [1st Dept 2004]).
Generally estoppel does not apply where...
To continue reading
Request your trial