Opinion
No. 117914/09.
2010-11-30
GREENBERG FARROW ARCHITECTURE, INC., Plaintiff, v. RENAISSANCE EQUITY HOLDINGS, LLC, Defendant.
Zisholtz & Zisholtz, Esqs., Mineola, Attorney for the Plaintiff. Joseph Marino, Esq., Brooklyn, Attorney for the Defendant.
Zisholtz & Zisholtz, Esqs., Mineola, Attorney for the Plaintiff. Joseph Marino, Esq., Brooklyn, Attorney for the Defendant.
JUDITH J. GISCHE, J.
This is an action by plaintiff, Greenberg Farrow Architecture, Inc. (“Greenberg”), for breach of contract and account stated. Plaintiff now moves for summary judgment pursuant to CPLR § 3212. Defendant, Renaissance Equity Holdings, LLC. (“Renaissance”), opposes this motion in its entirety. Issue has been joined and the note of issue has not yet been filed. Summary judgment relief is, therefore, available. CPLR § 3212; Brill v. City of New York, 2 NY3d 648 (2004).
Facts Considered and Arguments Presented
Plaintiff is in the business of providing and furnishing architecture services and related materials within the state of New York. Greenberg entered into a written agreement with Renaissance, on March 12, 2008, to perform work, labor and services and to furnish plans, blue prints, designs and layouts in connection with a project located at Flatbush Gardens in Brooklyn, New York. This agreement was amended May 27, 2008 and continued until August 24, 2008.
Plaintiff claims that the agreed upon price, and the fair and reasonable value of the work, labor and services performed as well as the plans, blueprints, designs, and layouts furnished was $64,500, of which only $34,625.43 was paid (on July 29, 2008). Plaintiff claims there is an outstanding balance owed to it of $26,784.17. Plaintiff further claims that the outstanding balance is comprised of work completed under the amended terms of the contract.
Defendant disagrees and states that the $34,625.43, paid on July 29, 2008 was in full satisfaction of the services that had been provided. Defendant further states that the first time he received notice of the disputed outstanding amount was via email, from Greenberg employee Naqvid Maqami, on November 20, 2008. Defendant contends that payment due for services made under the amendments is covered by the existing original contract. It argues all references in the amendments are to drawings, sketches, plans and schemes covered under section 2.1 Schematic Design Phase and 2.4 Enhanced Schematic Design (Design Development) of the March 12, 2008 agreement.
Discussion
On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial. CPLR § 3212; Winegrad v. NYU Medical Center, 64 N.Y.2d 851 (1985); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). Only if this burden is met, will it then shift to the party opposing summary judgment, who must then establish the existence of material issues of fact, through evidentiary proof in admissible form, that would require a trial of this action. Zuckerman v. City of New York, supra. If the proponent fails to make out its prima facie case for summary judgment, however, then its motion must be denied, regardless of the sufficiency of the opposing papers. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986); Ayotte v. Gervasio, 81 N.Y.2d 1062 (1993).
Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 (1977). The court's function on these motions is limited to “issue finding,” not “issue determination.” Sillman v. Twentieth Century Fox Film, 3 N.Y.2d 395 (1957). When only issues of law are raised in connection with a motion for summary judgment, the court may and should resolve them without the need for a testimonial hearing. Hindes v. Weisz, 303 A.D.2d 459 (2d Dept.2003).
To establish a prima facie case of breach of contract, plaintiff must plead facts that show: (1) formation of a contract between plaintiff and defendant, (2) performance by plaintiff, (3) defendant's failure to perform, (4) resulting damage, Furia v. Furia, 116 A.D.2d 694 (2d Dept.1986); see Ascoli v. Lynch, 2 AD3d 553 (2d Dept.2003) (citing PJI). In order to plead a breach of contract cause of action, a complaint must allege the provisions of the contract upon which the claim is based, Sud v. Sud, 211 A.D.2d 423 (1st Dept.1995); Atkinson v. Mobil Oil Corp., 205 A.D.2d 719 (2d Dept.1984).
An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due, Ryan Graphics, In.c v. Bailin, 39 AD3d 249 (1st Dept.2007). An account stated assumes the existence of some indebtedness between the parties or an express agreement to treat a statement of debt as an account stated, Ross v. Sherman, 57 AD3d 758 (2d Dept.2008); Gurney, Becker & Bourne, Inc. v. Benderson Development Company, Inc., 47 N.Y.2d 995 (1979); Grinnell v. Ultimate Realty, LLC, 38 AD3d 600 (2d Dept.2007). A cause of action alleging an account stated, however, cannot be used as simply another means to attempt to collect under a disputed contract. Ross v. Sherman, supra. Grinnell v. Ultimate Realty, LC, supra, M. Paladino, Inc. v. J. Lucchese & Son Contracting Corp., 247 A.D.2d 515 (2d Dept.1998). Where a party claims that specific objections were made, in recalled conversations, to bills rendered, summary judgment on an account stated should be denied. Fink, Weinberger, Friedman, Berman & Lowell, P.C. v. Petrides, 80 A.D.2d 781 (1st Dept 1981).
Here, plaintiff has failed to meet its burden on this motion. First, the court cannot determine, as a matter of law on the record presented, what architectural services were actually provided by plaintiff for the outstanding billing. Payment for services under section 2.1 and 2.4 of the contract has already been made, and is not disputed. Additional services, however, are disputed. The existence of account stated is not, in and of itself, sufficient to establish that Greenberg performed other phases of the architectural services contemplated under the disputed contract.
In any event, defendant has shown there are triable issues of material fact. First, defendant has submitted sufficient evidence to establish that he did dispute the additional sum of $26,784.17 sought by plaintiff, once he received an bill. This defeats summary judgment on a claim for account stated. Fink, Weinberger, Friedman, Berman & Lowell, P.C. v. Petrides, supra.
On the breach of contract claim, defendant raises a question of fact as to whether the bill is for work that was covered by the original payment or for additional work. Specifically defendant references an email communication, between the parties, wherein plaintiff states that “[i]n essence we will provide plan depicting what and where (SD/DD), but not how to build it (Construction Documents).” (See, Pltf's n/m, exh. B., p. 19). Thus, defendant argues that all of the work done was all pursuant to 2.1 and 2.4 of the contract, which was covered by the original bill and payment. This discrepancy is not one that the court can decide on a motion for summary judgment, as it is an issue of fact for the jury to decide.
Accordingly, plaintiff's motion for summary judgment is denied.
Conclusion
For the foregoing reasons, it is hereby:
ORDERED that plaintiff, GREENBERG FARROW ARCHITECTURE, INC.'s motion for summary judgment against defendant, RENAISSANCE EQUITY HOLDINGS, LLC., is denied; and it is further
ORDERED that any relief not expressly addressed is hereby denied; and it is further
ORDERED that this constitutes the decision and order of the court.