Opinion
Index Nos. 451569/2018 651845/2012 Motion Seq. No. 003 004
04-18-2023
BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Plaintiff, v. SUMMIT RESTAURANT REPAIRS & SALES, INC., Defendant. SUMMIT RESTAURANT REPAIRS & SALES, INC., Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
Unpublished Opinion
DECISION + ORDER ON MOTION (ACTION #1)
HON. ANDREW BORROK, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 003) 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 151, 152 were read on this motion to/for PRECLUDE
The following e-filed documents, listed by NYSCEF document number (Motion 004) 106,107,108,109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 149, 150, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER
Summit Restaurant Repairs & Sales, Inc.'s (Summit) motion (Mtn. Seq. No. 003) to preclude (i) the testimony of the Danielle Giovannone and the DRO Decisions (NYSCEF Doc. Nos. 88-89) that she issued, and (ii) the testimony of the Department of Education's (DOE) expert J. Scott Friesen must be denied.
Summit's motion for summary judgment (Mtn. Seq. No. 004) must also be denied.
By way of background, two related cases - Action 1 (Index. No. 651845/2012) and Action 2 (451569/2018) have been consolidated for trial. Ms. Giovannone's testimony is not precluded by the law of the case or otherwise. Ms. Giovannone, an Agency Attorney in the Commercial Unit of the DOE's Office of Legal Services, and who served as the Dispute Resolution Officer (the DRO) made certain determinations as to the claims at issue in this case based on her review of what purport to be DOE's business records.
All NYSCEF Doc. Nos. referenced shall be those in Action 2 unless otherwise noted.
Previously, the Appellate Division held that by virtue of participating in this litigation, the DOE had waived its right to compel Summit to submit their claims to the dispute resolution process otherwise required under the parties' contract (Summit Rest. Repairs & Sales, Inc. v New York Dept. of Educ, 201 A.D.3d 612, 612 [1st Dept 2022]). The Appellate Division did not however hold that the DOE was precluded from litigating those issues and calling fact witnesses like Ms. Giovannone and that such witnesses were not permitted to testify as to their assessment of Summit's conduct.
For clarity, the Appellate Division held that, on the record before the court, they were unable to determine whether the totality of the claims including those not submitted to the DRO were part of the same transaction or occurrence such that they would be barred by res judicata (id.). Thus, the branch of the motion must be denied.
The branch of the motion seeking to bar J. Scott Friesen from testifying must also be denied. It does not matter that (i) Mr. Friesen is not currently licensed in New York (although he is in the process of being licensed) (Schechter v 3320 Holding LLC, 64 A.D.2d 446, 449-450 [1st Dept 2009]), or (ii) Mr. Friesen's methodology is one that does not account for certain factors that Summit thinks are important because Mr. Friesen has testified that his methodology for determining whether Summit improperly overbilled the DOE for refrigerants is generally accepted in his area of expertise and Summit has failed to establish otherwise (Frye v US, 293 F 1013, 1014 [US App DC 1923]; Mar so v Novak, 42 A.D.3d 377, 378 [1st Dept 2007], citing People v Wesley, 83 N.Y.2d 417 [1994]). At most they have raised issues properly explored through cross-examination.
Summit's motion (Mtn. Seq. No. 004) for summary judgment must also be denied because material issues of fact remain that require trial (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). Among other things, and as discussed by the Appellate Division, issues of fact remain as to (i) whether Summit's claims in this case arise from the same transaction or series of transactions as the claims previously submitted to the dispute resolution proceeding, (ii) when and under what circumstances the contract was terminated, if it was terminated at all, and (iii) whether the Summit's submission of fabricated letters to the DOE was a central or dominant part of the parties' course of conduct, such that Summit is barred from recovering under the contract (SummitRest. Repairs & Sales, Inc., 201 A.D.3d at 612-613). The discovery that has taken place since the Appellate Division issued its decision has not mooted these issues. Indeed, it has only highlighted the need for trial. The motion for summary judgment must therefore be denied.
It is hereby ORDERED that Summit's motion (Mtn. Seq. No. 003) is denied; and it is further
ORDERED that Summit's motion (Mtn. Seq. No. 004) for summary judgment is denied; and it is further
ORDERED that the parties shall appear for a pre-trial conference on May 16, 2023, at 11:30am.