Roos v. King Constr.

• Decision Date: 15 January 2020
• Docket Number: Index No. 51160/13,2016–11131
• Citation: Roos v. King Constr., 179 A.D.3d 857, 116 N.Y.S.3d 344 (N.Y. App. Div. 2020)
• Parties: Andrew H. ROOS, respondent, v. KING CONSTRUCTION, etc., et al., appellants.
• Court: New York Supreme Court — Appellate Division

179 A.D.3d 857

116 N.Y.S.3d 344

Andrew H. ROOS, respondent,

v.KING CONSTRUCTION, etc., et al., appellants.

2016–11131

Index No. 51160/13

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 28, 2019

January 15, 2020

Hogan & Rossi, Brewster, N.Y. (David Simon and Sean H. Lewis of counsel), for appellants.

Bartels & Feureisen, LLP, White Plains, N.Y. (Michael Fahey of counsel), for respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

ORDERED that the judgment is reversed, on the law, with costs, those branches of the plaintiff's motion which were for summary judgment on the causes of action alleging breach of contract and conversion and diversion of trust funds are denied, the order dated September 28, 2015, is modified accordingly, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith.

This action involves, inter alia, an alleged breach of a construction contract. During the construction of the plaintiff's home, the parties had various disputes regarding the work flow of the project and the coordination of construction. The plaintiff ultimately terminated the defendants' work prior to the completion of the project. Thereafter, the plaintiff commenced this action seeking, inter alia, damages for breach of contract and conversion and diversion of trust funds. The plaintiff sought cost-of-completion damages and the return of a payment in the sum of $50,000 that, according to the plaintiff, constituted diverted trust funds. The Supreme Court partially granted the plaintiff's motion for summary judgment and entered a judgment awarding damages after an inquest. The defendants appeal.

We note that the defendants' prior appeal from the order dated September 28, 2015, was dismissed by a decision and order on motion of this Court dated July 5, 2017, for failure to timely perfect. While the defendants ordinarily would be precluded from relitigating the issues which could have been raised on the prior appeal (see Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 754, 697 N.Y.S.2d 866, 720 N.E.2d 86 ; Bray v. Cox, 38 N.Y.2d 350, 353, 379 N.Y.S.2d 803, 342 N.E.2d 575 ), under the circumstances of this case, we exercise our discretion to determine the issues raised on the instant appeal from the judgment (see Solomon v. Green Bay Sanitation Corp., 164 A.D.3d 854, 854–855, 79 N.Y.S.3d 539 ; Saunders v. Tarsia, 124 A.D.3d 620, 620, 997 N.Y.S.2d 909 ; Ravina v. Hsing Hsung Chuang, 95 A.D.3d 1288, 1288–1289, 945 N.Y.S.2d 411 ).

A party seeking summary judgment bears the initial burden of demonstrating its prima facie entitlement to the requested relief (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ; Zuckerman v. City of New York, 49 N.Y.2d 557, 559, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298 ). Only if that burden is met does the burden then shift to the party opposing summary judgment to tender evidence, in a form admissible at trial, sufficient to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Zuckerman v. City of New York, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d at 1068, 416 N.Y.S.2d 790, 390 N.E.2d 298 ).

The Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the causes of action alleging breach of contract and conversion and diversion of trust funds. Regarding the breach of contract cause of action, the plaintiff failed to establish his entitlement to judgment as a matter of law. Triable issues of fact exist, including which party was at fault for construction delays (see Buck Constr. & Dev., Inc. v. Hetzel, 165 A.D.3d 875, 876, 85 N.Y.S.3d 194 ) and whether the plaintiff breached the contract by preventing the defendants' performance (see Plainview S. & S. Concrete Co. v. NVNG Dev. Corp., 151 A.D.2d 654, 655, 542 N.Y.S.2d 714 ). Regarding the causes of action alleging conversion and diversion of trust funds, the plaintiff's own submissions raise triable issues of fact as...