Opinion
INDEX NO. 156952/2018
04-15-2020
JERRICK ASSOCIATES, INC., Plaintiff, v. RUDD REALTY MANAGEMENT CORP., 215 EAST 80 CONDOMINIUM and BOARD OF MANAGERS OF 215 EAST 80 CONDOMINIUM, Defendants.
NYSCEF DOC. NO. 80 PRESENT: HON. PAUL A. GOETZ Justice MOTION DATE 05/24/2019 MOTION SEQ. NO. 002
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 002) 42-50, 55-73 were read on this motion to/for SUMMARY JUDGMENT.
Plaintiff Jerrick Associates was hired by defendants in March 2016 to perform exterior façade repairs to the property located at 215 East 80th Street, New York, New York. After the defendants failed to make the last payment in March 2017, plaintiff filed a mechanic's lien and commenced this action to foreclose on the mechanic's lien, and for breach of contract and account stated. By order dated July 9, 2019, this court granted defendants' motion to dismiss plaintiff's first cause of action to foreclose on the mechanic's lien and granted plaintiff's cross-motion to amend the complaint to add the Board of Managers as a defendant in this action. In their answer to the amended complaint, defendants assert a counterclaim against plaintiff, alleging that the work plaintiff performed included exterior repair and waterproofing adjacent to certain units in the building and that plaintiff's work was defective, causing water to leak and cause damage to these units. Plaintiff Jerrick Associates now moves pursuant to CPLR 3212 for summary judgment on its remaining causes of action for breach of contract and account stated, and for dismissal of defendants' counterclaim.
In its motion, plaintiff primarily relies on the argument that it is entitled to summary judgment on its breach of contract claim for the last payment due in March 2017 because the architect certified that the work in the plaintiff's application for payment was completed. Pursuant to Article 5.1.3 of the parties' contract, when an application for payment is received by the architect prior to the 15th of each month, as it was here, the owner shall make the payment to the contractor no later than the 15th of the following month. Affidavit of John Fallon sworn to on December 4, 2019, Exh. A.
In order for plaintiff to make a prima facie showing of its entitlement to summary judgment on its breach of contract claim, plaintiff must submit the contract, provide evidence of plaintiff's performance thereunder, as well as defendant's breach and the resulting damages. Valenti v. Going Grain, Inc., 159 A.D.3d 645, 645 (1st Dep't 2018); Harris v. Seward Park Hous. Corp., 79 A.D.3d 425, 426 (1 st Dep't 2010). Here, plaintiff has failed to meet this burden. First, the contract that plaintiff submits in support of its motion is not executed by defendants and is missing the pertinent attachments and riders which describe the scope of work. Further, plaintiff has failed to show that it performed the work required under the contract. Although plaintiff argues that its work did not pertain to the three units which have allegedly sustained water damage, plaintiff fails to provide any evidentiary support for this argument. Finally, plaintiff's argument that the architect's certification of its application for payment demonstrates its performance under the contract lacks merit because it fails to cite any contract provision which provides this. Indeed, paragraph 17 of the contract contradicts plaintiff's position, as it provides that the owner's acceptance of the work does not constitute an acknowledgment that the work has been performed in accordance with the terms of the agreement. Fallon Aff., Exh. A. Accordingly, plaintiff's motion for summary judgment must be denied.
Finally, in their opposition to the motion, defendants argue that the claims against Rudd Realty Management should be dismissed because it was acting as an agent for a disclosed principal. In response, plaintiff does not dispute this but merely argues that defendants are not entitled to this relief since they did not file a cross-motion. However, under CPLR 3212(b), a cross-motion is not required in order for defendant Rudd Realty to be entitled to relief. Accordingly, it is
ORDERED that plaintiff's motion for summary judgment is denied; and it is further
ORDERED that the claims against defendant Rudd Realty Management are dismissed, and the Clerk shall enter judgment accordingly, with costs and disbursements awarded to said defendant; and it is further
ORDERED that the action shall bear the following caption:
Jerrick Associates, Inc., Plaintiff,
-against-
215 East 80 Condominium, and Board of Managers of 215 East 80 Condominium, Defendants.
And it is further
ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the County Clerk (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the parties being added pursuant hereto; and it is further
ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address (ww.nycourts.gov/supctmanh)]. 4/15/20
DATE
/s/ _________
PAUL A. GOETZ, J.S.C.