UA Builders Corp. v. Imperial Gen. Constr., Corp.

• Decision Date: 17 June 2022
• Docket Number: Motion Seq. No. 002,Index No. 652639/2019
• Citation: 2022 NY Slip Op 31954 (U)
• Parties: UA BUILDERS CORP., Plaintiff, v. IMPERIAL GENERAL CONSTRUCTION, CORP., XHELADIN VELIU, ARBEN VELIU, and AFRIM VELIU, Defendants.
• Court: New York Supreme Court

2022 NY Slip Op 31954(U)

UA BUILDERS CORP., Plaintiff,
v.
IMPERIAL GENERAL CONSTRUCTION, CORP., XHELADIN VELIU, ARBEN VELIU, and AFRIM VELIU, Defendants.

Index No. 652639/2019, Motion Seq. No. 002

Supreme Court, New York County

June 17, 2022

Unpublished Opinion

MOTION DATE 04/11/2022

DECISION + ORDER ON MOTION

HON. NANCY M. BANNON: JUDGE

The following e-filed documents, listed by NYSCEF document number (Motion 002) 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49 JUDGMENT - SUMMARY were read on this motion to/for

I. INTRODUCTION

In this action arising from the alleged breach of construction subcontracts for the performance of certain roofing work at three construction sites in the Bronx, the defendant subcontractor, Imperial General Construction Corp. (Imperial) and its owners, Xheladin Veliu, Arben Veliu, and Afrim Veliu, move pursuant to CPLR 3212 or, in the alternative, pursuant to CPLR 3211(a)(1) and (7), to dismiss the complaint in its entirety. The plaintiff opposes the motion. For the following reasons, the motion is granted in part.

II. BACKGROUND

As alleged in the complaint, the plaintiff was retained as general contractor to perform certain construction work at three project sites at the following locations in the Bronx: (1) 764 East 152^nd Street (the E 152 Project), (2) 915 Dawson Street (the Dawson Project), and (3) 1081 Tiffany Street (the Tiffany Project). On or about July 30, 2018, the plaintiff retained Imperial as

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its subcontractor to perform certain roofing and other work at each site. Pursuant to three written agreements applicable to each site, respectively, Imperial was to complete its work to specified standards within five days of receiving notice to proceed. Despite being paid the entirety or almost the entirety of the subcontract prices, Imperial failed to complete work at any project. Further, the plaintiff alleges that the work Imperial did perform was defective, leading to water damage.

The plaintiff commenced this action by filing of the summons and complaint on May 3, 2019. The plaintiff asserts claims against Imperial sounding in breach of contract (first, second, and third causes of action), unjust enrichment (fourth cause of action), and negligence (sixth cause of action), and a claim against Imperial and its owners sounding in fraud (fifth cause of action). The defendants filed an answer on September 5, 2019, asserting ten affirmative defenses and two counterclaims seeking payment from the plaintiff for work Imperial performed on change orders at the E 152 Project and the Tiffany Project and the balance of the subcontract prices. Discovery was completed and the Note of Issue filed on October 13, 2021. The instant motion ensued.

III. DISCUSSION

A. Motion for Summary Judgment

It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any triable issues of fact. See Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985). In opposition, the nonmoving party must demonstrate by admissible evidence the existence of a triable issue of fact. See Alvarez v Prospect Hospital, 68 N.Y.2d 320 (1986);

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Zuckerman v City of New York, 49 N.Y.2d 557 (1980). However, if the initial burden is not met by the movant, summary judgment must be denied regardless of the sufficiency of the opposing papers. See Winegrad v New York University Medical Center, 64 N.Y.2d 851; Giaquinto v Town of Hempstead, 106 A.D.3d 1049 (2^nd Dept. 2013); O'Halloran v City of New York, 78 A.D.3d 536 (1^st Dept. 2010).

In support of the branch of their motion seeking summary judgment, the defendants have submitted an affirmation of counsel, a statement of material facts signed only by counsel, and the subject roofing subcontracts. The defendants have submitted no affidavit of facts to support their motion, as is required pursuant to CPLR 3212(b). See Sam v Town of Rotterdam, 248 A.D.2d 850, 851 (3^rd Dept. 1998) ("[T]he inescapable fact is that CPLR 3212(b) very specifically requires a summary judgment motion to 'be supported by an affidavit.'"). The affirmation of the defendants' counsel is not a substitute for this requirement. Since counsel claims no personal knowledge of the facts, his affirmation is without probative value or evidentiary significance on this motion. See Zuckerman v City of New York, 49 N.Y.2d 557 (1980); Trawally v East Clarke Realty Corp., 92 A.D.3d 471 (1^st Dept. 2012); Thelen LLP v Omni Contracting Co. Inc., 79 A.D.3d 605 (1^st Dept. 2010); Miller v City of New York, 277 A.D.2d 363 (2^nd Dept. 2000). While the verified answer might have sufficed, it was not included in the defendants' filing, which, as the plaintiff correctly observes, separately warrants denial of their summary judgment motion. See CPLR 3212(b); Weinstein v Gindi, 92 A.D.3d 526 (1^st Dept. 2012). Finally, even if the court were to consider the verified answer, the boilerplate affirmative defenses asserted therein are insufficient, in the absence of any proof in admissible form, to establish the defendants' entitlement to summary judgment on any claim.

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Accordingly, the branch of the defendants' motion seeking summary judgment dismissing the complaint must be denied.

B. Motion to Dismiss

On a motion to dismiss for failing to state a cause of action under CPLR 3211(a)(7), the pleading is to be afforded a liberal construction and the court should accept as true the facts alleged in the complaint, accord the pleading the benefit of every reasonable inference, and only determine whether the facts, as alleged, fit within any cognizable legal theory. See Hurrell-Harring v State of New York, 15 N.Y.3d 8 (2010); Leon v Martinez, 84 N.Y.2d 83 (1994). Dismissal under CPLR 3211(a)(1) is warranted only when the documentary evidence submitted "resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim." Fortis Financial Services, LLC v Fimat Futures USA, 290 A.D.2d 383, 383 (1^st Dept. 2002); see Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 A.D.3d 431, 433 (1^st Dept. 2014); Fontanetta v John Doe 1, 73 A.D.3d 78 (2^nd Dept. 2010).

i. Breach of Contract

The complaint avers that the parties entered into...