Opinion
Index 511407/2021
02-24-2022
JESAN CONSTRUCTION GROUP LLC, Plaintiff, v. MEDFORD BER, LLC AND DAVID LEVINE, Defendants,
Unpublished Opinion
DECISION AND ORDER
HON. LEON RUCHELSMAN, JUSTICE
The defendants have moved seeking to dismiss the action on various grounds. The plaintiff opposes the. motion. Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination.
The plaintiff is a contractor who was hired by the defendant Bedford Ber on September 15, 2017 to perform certain construction work at property located at 99 and 101 Granite Street in Kings County. The plaintiff instituted this lawsuit against the defendants arguing he has not. been paid and is owed approximately $72.0, 255.44 and. filed a Mechanic's Lien against the property. The amended complaint asserts six causes of action, namely for a foreclosure of the mechanic's line.,, breach of contract, unjust enrichment, account, stated, trust, fund diversion and a violation of the New York Prompt Pay Act. The defendants have moved seeking to dismiss the lawsuit on numerous grounds. First, they assert the plaintiff assigned the contract and thus no longer has any standing to pursue, these claims. Further, they argue the lien expired by operation, of law., the plaintiff failed to comply with a condition precedent and that ail claims are barred by the contract. As noted, the plaintiff has opposed the motion arguing the claims all have merit, Conclusions of Law
It is well settled that upon a motion to dismiss the court must determine, accepting the allegations of the complaint as true, whether the party can succeed upon any reasonable view of those facts "(Strujan. v. Kaufman & Kahn, LLP, 168 A.D.3d 1114, 93 N.Y.S.3d 334 [2d Dept, ., 2019]). Further, all the allegations in the complaint are deemed true and all reasonable inferences may be drawn in favor of the plaintiff (Weiss v. Lowenberg, 95 A.D.3d 405, 944 N.Y.S.2d 27 [1 Dept., 20.12]) .Whether the complaint .will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a pre-discovery CPLR §3211 motion to dismiss, (see, Moskowitz v. Masliansky, 198 A.D.3d 637, 155 N.Y.S.3d 414 [2021]).
Dept., 1987]).
The defendants have introduced an 'assignment of contract' wherein Jesan assigned its rights, and interests in the contract to an entity entitled ABC Select MY Inc. The document is executed by Angelo Giacchi, Mr. Giacchi has submitted an affidavit wherein he asserts that "the Assignment of Contract .annexed to the. Motion by ME'DFQRD BER- and LEVTNE does not contain my signature" (see, Affidavit of Angelo Giacchi, ¶ 12).. However, . on November 21, 2.017 a representative of the plaintiff sent an email which stated "Per your request, please find signed Assignment of Contract" with an attachment of the same Assignment of contract' presented in the motion.
Furthermore, Mr. Giacchi's assertion he never sighed the document compels the only other reasonable conclusion that can be drawn, namely that .his signature has been forged. This is true because beneath the signature which Mr. Giacchi denies is his are the printed words "Name: Angelo Giacchi" and beneath that the printed words "Title:Owner" . (id) . However, it is. well, settled that the bare self-serving claim that a document was. forged is insufficient to raise any questions of fact (Brown Park I, LP v. Imperial Development and Construction Corp;, 65 A.D.3d 510, 882 N.Y.S.2d 919 [2d Dept., 2009]). As the Court of Appeals stated in Banco Popular North America v. Victory Taxi Management Inc., 1 N.Y.3d 381, 774 N.Y.S.2d 480 [2004]" something more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature. Here, there is an absence of factual assertions supporting a claim of forgery..." (id). Of course, where a party presents more than conclusory evidence that the signature is a forgery then questions of fact have been raised and there can be no summary determination of the lawsuit (see., Diolacidi v. Gruder, 135 A.D.2d 395, 522 N.Y.S.2d 1 [1
have assented to its terms (Choung v. Allstate Insurance Co., 283 A.D.2d 468., 724 N.Y.S.2d 882 [2d Dept,, 2001]).
In this case, other than a bald denial as noted, there is no accompanying support for the contention that the signature of Mr. Giacchi is a forgery. Thus, a party that signs and agrees to a: contract is generally presumed to know the contents of the contract and to
Mr. Giacchi further argues that "even assuming the authenticity of the Assignment of Contract, ABC was dismissed from the Project so any assignment would have been withdrawn" (see. Affidavit of Angelo Giacchi, ¶13). However, once ah assignment has been validly executed it does merely become "withdrawn"' upon any occurrences or non-occurrences, that may or may not have taken place. Thus, once the assignment was executed in remains valid and. is unaffected, by ABC s involvement at the project site.
Therefore, : the. plaintiff has failed to. present any evidence raising any questions they maintain standing to proceed with this lawsuit.
Further, Article 18 .4 of the contract requires any lawsuit to he filing within one year of substantial completion of the work performed. The plaintiff does not assert the lawsuit was filed within the requisite year', rather,, that the time in which to file, the lawsuit was tolled because the defendants, had indicated they would pay the plaintiff the outstanding money owed.. However,, to succeed upon an argument, based upon equitable estoppel it must be demonstrated the "plaintiff, was induced by fraud, misrepresentations or deception to refrain from filing, a timely action" (Zumpaho v. Ouinn, 6 N.Y.3d 666, 816 N.Y.S.2d 703 [2006]). There is no allegation the defendants engaged in such improper and fraudulent conduct which; prevented the plaintiff from commencing the lawsuit in a timely manner, pursuant to the contract. Further, there is no basis to question the authenticity of the signatures on. the contract.
Consequently, based on the foregoing, the motion seeking to dismiss the complaint is granted.
So ordered.