U.W. Marx, Inc. v. Koko Contracting, Inc.

• Decision Date: 05 July 2012
• Parties: U.W. MARX, INC., Respondent, v. KOKO CONTRACTING, INC., Appellant. (Action No. 1.) Koko Contracting, Inc., Appellant, v. U.W. Marx, Inc., et al., Respondents, et al., Defendant. (Action No. 2.)
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 893
948 N.Y.S.2d 440
2012 N.Y. Slip Op. 05375

U.W. MARX, INC., Respondent,
v.
KOKO CONTRACTING, INC., Appellant. (Action No. 1.)
Koko Contracting, Inc., Appellant,
v.
U.W. Marx, Inc., et al., Respondents, et al., Defendant. (Action No. 2.)

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

July 5, 2012.

[948 N.Y.S.2d 441]

Milber, Makris, Plousadis & Seiden, LLP, Woodbury (Joseph J. Cooke of counsel), for appellant.

Mastropietro–Prade, LLC, Saratoga Springs (John P. Mastropietro of counsel), for respondents.

Before: PETERS, P.J., SPAIN, MALONE JR., KAVANAGH and GARRY, JJ.

MALONE JR., J.

[97 A.D.3d 893]Appeal from an order of the Supreme Court (Hummel, J.), entered December 27, 2011 in Rennselaer County, which, among other things, granted a motion by U.W. Marx, Inc. and Continental Casualty Company for, among other things, summary judgment dismissing the complaint in action No. 2.

U.W. Marx, Inc. was selected as the general contractor for the [97 A.D.3d 894]construction of a school by the City School District of Peekskill. Marx entered into a subcontractor agreement with Koko Contracting, Inc. to complete the roofing work associated with the project. During the course of the project, a dispute arose between Marx and Koko regarding payment to Koko. In November 2007, Marx and Koko both sent notices of default to the other and, by December 2007, their relationship was terminated. In December 2007, Marx commenced action No. 1 against Koko, alleging breach of contract. Koko subsequently commenced action No. 2 against Marx, Continental Casualty Company and the school district seeking enforcement of its lien and asserting causes of action for account stated, quantum meruit and diversion of trust assets. Koko also made a claim against Continental as surety on the project bond. The actions were thereafter joined for trial and, upon cross motions by Marx, Continental and Koko, Supreme Court granted Marx's motion for partial summary judgment on its claim against Koko for breach of contract in action No. 1 and granted summary judgment to Marx and Continental dismissing Koko's complaint in action No. 2 in its entirety.¹ Koko appeals.

[948 N.Y.S.2d 442]

On a motion for summary judgment, the moving party bears the burden of establishing that no material issues of triable fact exist and that it is entitled to judgment as a matter of law ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986];Zuckerman v. City of...