Opinion
Index No. 650017/2022 MOTION SEQ. No. 001
01-22-2024
JOSEPH L. BALKAN, INC., Plaintiff, v. DOMINICK LOGUIDICE, XINOS CONSTRUCTION CORP Defendant.
Unpublished Opinion
MOTION DATE 09/20/2023
PRESENT: HON. LYLE E. FRANK, Justice
DECISION + ORDER ON MOTION
LYLE E. FRANK, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41,42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75 were read on this motion to/for LEAVE TO FILE.
Background &Factual Allegations
This action arises out of allegations defendants failed to pay plaintiff in full for performed construction services. Plaintiff, Joseph L. Balkan, Inc. ("plaintiff') is a New York based plumbing and sewer company. Defendants Dominick Loguidice and Xinos Construction Corp, ("defendants") hired plaintiff to perform plumbing and sewer services at defendants' property located at 236 East 74th Street, New York, NY 10021.
On or about September 24, 2018, plaintiff and defendants entered into an agreement whereby plaintiff agreed to replace and lower defendants' sewer pipe in exchange for payment of $36,500.00. This agreement is in the format of a proposal submitted by plaintiff and signed by defendant. The parties do not dispute the validity of this original agreement. Subsequently, plaintiff and defendant agreed to expand the scope of the project and project cost. However, the parties dispute the extent to which the scope of the project was adjusted, and which invoices were approved. Plaintiff argues the project's scope was altered by adding work on the exterior of the premises, as well as by lowering the sewer pipe further down in the ground than initially planned. In contrast, defendants assert the scope always included both the interior and exterior of the property and rather the scope changed only as to the lowering of the sewer further down than originally planned.
Plaintiff claims pursuant to the proposals it submitted to defendants, the total adjusted cost of the project is $162,800.00. As it is undisputed defendants have already paid plaintiff a sum of $72,450, plaintiffs allege defendants owe an outstanding balance of $90,350. Defendants dispute plaintiffs accounts stated on the basis that they did not sign all change orders submitted by plaintiff. Defendants now moves for leave to amend their answer to add a Counterclaim for breach of implied warranty and to recover monies it alleges it was overcharged by plaintiff. Plaintiff opposes and cross moves for summary judgment or partial summary judgment.
Discussion
I. Leave to Amend
Applications for leave to amend pleadings under CPLR 3025(b) should be freely granted unless the proposed amendment (1) would unfairly prejudice or surprise the opposing party, or (2) is palpably insufficient or patently devoid of merit" (Maldonado v Newport Gardens, Inc., 91 A.D.3d 731, 731-732 [2012]; see RCLA, LLC v 50-09Realty, LLC, 48 A.D.3d 538 [2008]). A motion for leave to amend is committed to the broad discretion of the court (see Ravnikar v Skyline Credit-Ride, Inc., 79 A.D.3d 1118, 1119 [2010]). "In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, [and] whether a reasonable excuse for the delay was offered" (Cohen v Ho, 38 A.D.3d 705, 706 [2007]; see American Cleaners, Inc. v American Inti. Specialty Lines Ins. Co., 68 A.D.3d 792, 794 [2009]).
In support of its motion seeking leave to amend its answer to add counterclaims, defendants argue the basis of such counterclaims have only come to light through the course of discovery. Defendants argue that during depositions it was revealed the crew that performed rock removal at the site was not skilled and qualified in performing rock removal. Furthermore, defendants assert during disclosure it came to light the number of cubic yards of rock plaintiff alleges it removed would not be feasible at the subject premises.
In opposition, plaintiff asserts several bases for which the Court should deny defendants' leave to amend. First, plaintiff contends defendants' motion should be denied for failure to submit an affidavit of merit and furthermore that defendants claim is without merit as they do not dispute the actual work that was completed was satisfactory. Next, plaintiff contends defendant cannot assert a breach of warranty claim because the property is not Lastly, plaintiff argues it would be prejudiced if defendants' leave to amend is granted as discovery is complete.
Here, the Court finds plaintiffs arguments in opposition unavailing. First, the First Department has clarified that an affidavit of merit is no longer required for parties seeking leave to amend their answer. (See Yoon Jung Kim v Gahee An, 2013 N.Y. Mise. LEXIS 3849 citing MBIA Ins. Corp, v Greystone & Co., Inc., 74 A.D.3d 499 [2010J). The Court in MBIA Ins. Corp. held that on motion for leave to amend, plaintiff need not establish the merit of its proposed new allegations but simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit. (MBIA Ins. Corp, v Greystone &Co., Inc., 74 A.D.3d 499 [2010]). While plaintiff argues defendants proposed claim for breach of implied warranty is without merit because defendants have admitted in their papers that they do not have an issue with the quality of the work itself, this admission alone does not render defendants' claims meritless in this context. Here, defendants' basis for its breach of implied warranty is not that the result of the work was faulty, but that the work took longer than should have under industry standard due to the employee's inadequate training and supervision. Whether defendants will ultimately succeed in recovering for said counterclaim is not at issue. Here, the inquiry is whether there is potential merit the moving party's claim. The Court finds this is a meritorious claim.
Furthermore, the Court finds plaintiff has failed to articulate how it would be prejudiced should defendants' motion be granted. A showing of prejudice requires some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position. (Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364 [2007] [internal citations omitted]). Here, plaintiff merely asserts that it would be prejudiced because discovery is complete yet offers no specific reason as to what information it would need to illicit from further discovery. For these reasons, defendants' motion for leave to amend its answer is granted.
II. Summary Judgment
An application for summary judgment pursuant to CPLR § 3212 "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]; see also Zuckerman v. New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Id. "[B]ald, conclusory assertions or speculation and '[a] shadowy semblance of an issue' are insufficient to defeat summary judgment." (Stonehill Capital Mgt. LLC v. Bank of the W., 28 N.Y.3d 439, 448, 45 N.Y.S.3d 864, 68 N.E.3d 683 [2016]). Courts have also recognized that summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted.
The Court finds plaintiff has failed to establish its prima facie entitlement to summary judgment as a matter of law. There are multiple issues of triable fact that render summary judgment inappropriate. First, plaintiff asserts that the parties initial contract extended only to replacement of a sewer line outside of the subject premises, and that the scope was expanded to include lowering the line within the building. Defendants contend that the original Contract involved lowering the entire sewer line both on the exterior and interior of the premises, and rather the scope of the project was only changed as to the depth of the lowering of the sewer line. Second, plaintiff claims that defendants' internal email referencing a "balance" of $66,300 was an admission that defendant owed plaintiff $66,300. In response, defendants submitted an affidavit stating that the term balance was a reference to how much money the plaintiff was alleging defendant owed, not an admission that such balance was correct. Third, there is a dispute as to how much rock plaintiff removed. Plaintiffs sworn answers to interrogatories state that they removed 5-6 cubic yards of rock each day of rock removal and their records show the crew to have spent 27 days engaged in rock removal, thus removing a total of 135-162 cubic yards of rock. Defendants assert this amount of rock removal is not possible given the subject premises.
Therefore, looking at the facts in the light most favorable to the nonmoving party, the Court finds that plaintiff has failed to establish there is no material issue of fact.
Accordingly, it is hereby
ADJUDGED that plaintiffs motion for summary judgment is denied; and it is further
ADJUDGED that defendants' motion for leave to amend its answer is granted; and it is further
ORDERED that the Clerk enter judgment accordingly.