Opinion
No. 12–34085.
02-15-2017
NELSON & POPE ENGINEERS AND LAND SURVEYORS, PLLC, d/b/a Nelson & Pope Engineers and Surveyors and Nelson, Pope & Voorhis, L.L.C., Plaintiffs, v. PINEWOOD DEVELOPMENT CORP. and Uri Hason, Defendants.
Sinnreich Kosakoff & Messina, L.L.P., Central Islip, for Plaintiffs. Jonathan Fisher, Esq., New York, for Defendants.
Sinnreich Kosakoff & Messina, L.L.P., Central Islip, for Plaintiffs.
Jonathan Fisher, Esq., New York, for Defendants.
MARTHA L. LUFT, J.
Upon the following papers numbered 1 to 45 read on this motion for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers 1–25; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 26–31; Replying Affidavits and supporting papers 32–45; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that the motion by the plaintiffs for an order pursuant to CPLR 3212 granting summary judgment in their favor and dismissing the defendants' counterclaim is granted to the extent set forth herein; and it is further
ORDERED that upon a search of the record pursuant to CPLR 3212(b), summary judgment is granted in favor of the defendants dismissing the plaintiffs' second and fourth causes of action; and it is further
ORDERED that the causes of action as to which partial summary judgment is granted herein are set down for a trial on the assessment of the plaintiffs' damages, costs, and attorney's fees.
The plaintiffs commenced this action to recover monies allegedly due and owing for professional services rendered to the defendant Pinewood Development Corp. (Pinewood) and the defendant Uri Hason (Hason)(collectively, the defendants). It is undisputed that the plaintiffs are in the business of providing engineering and related services to clients in connection with, among other things, real estate development projects, that Pinewood is in the business of developing such projects, and that Hason is currently the sole principal of Pinewood. Initially, the two plaintiffs commenced separate actions seeking to recover for services allegedly rendered to the defendants. Although based on slightly different factual allegations, the complaints in each action are essentially the same. By order dated February 6, 2014, the Court (Tarantino, J.) consolidated the two actions under the present caption.
In their complaints, the plaintiffs set forth five causes of action: the first, for breach of contract, the second, for an account stated, the third, for quantum meruit, the fourth, to pierce the corporate veil, and the fifth for attorney's fees and other costs. The defendants have interposed answers denying the material allegations in the complaints and asserting various affirmative defenses and a single counterclaim. The plaintiffs now move for summary judgment in their favor for the relief demanded in the complaint and for dismissal of said counterclaim. In support of their motion, the plaintiffs submit the pleadings, affidavits from two of their employees, the transcript of Hason's deposition, copies of the purported contracts between the parties, and the invoices allegedly sent to the defendants for the work performed.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986] ; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985] ). The burden then shifts to the party opposing the motion who must produce evidentiary proof in admissible form sufficient to require a trail of the material issues of fact ( Roth v. Barreto, 289 A.D.2d 557, 735 N.Y.S.2d 197 [2d Dept 2001] ; Rebecchi v. Whitmore, 172 A.D.2d 600, 568 N.Y.S.2d 423 [2d Dept 1991] ; O'Neill v. Town of Fishkill, 134 A.D.2d 487, 521 N.Y.S.2d 272 [2d Dept 1987] ). Furthermore, the parties' competing interest must be viewed "in a light most favorable to the party opposing the motion" ( Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610, 563 N.Y.S.2d 449 [2d Dept 1990] ).
In his affidavit, Victor Bert (Bert) swears that he was a partner at the plaintiff Nelson & Pope Engineers and Land Surveyors, PLLC, d/b/a Nelson & Pope Engineers and Surveyors (N & P) and Nelson, Pope & Voorhis, LLC (NPV)(collectively, the plaintiffs), that he is a registered Professional Engineer, and that N & P and NPV contracted over the years with the defendants to provide engineering services for their development projects. He indicates that this litigation involves four projects given the designations Pinewood Terrace, Arnold Drive, Beach Lane and the Preserve at Woodbury, and that the defendants never expressed any dissatisfaction with the work performed for those projects nor objected to the invoices generated from the work. He states that the plaintiffs contracted with the defendants to provide services regarding Pinewood Terrace in 2006 and 2007, that the plaintiffs duly billed for those services in six invoices dated from April 27, 2006 to June 27, 2008, and that the defendants made partial payments on only four of the invoices, leaving a balance of $12,889.94 due and owing. Bert further swears that the plaintiffs contracted with the defendants to provide services regarding Arnold Drive in 2003 and 2007, that the plaintiffs duly billed for those services in eighteen invoices dated from November 8, 2006 to June 27, 2008, and that the defendants did not pay any of the invoices, leaving a balance of $97,312.05 due and owing. He states that N & P entered into an oral contract with Hason to provide services in connection with Hason's private residence at Beach Lane in 2009, that an invoice was sent to Pinewood at Hason's direction, and that the defendants have not objected to, nor paid, that invoice, leaving a balance of $2,575 due and owing. He attests that the plaintiffs contracted with the defendants to provide services regarding the Preserve at Woodbury in 2008, that the plaintiffs duly billed for those services in an invoice dated September 28, 2008, and that the defendants have not objected to, nor paid, that invoice, leaving a balance of $3,300 due and owing. Bert further swears that the plaintiffs' billing rates are set forth in the subject "contracts/proposals," that the plaintiffs' invoices set forth the late charges and other costs due upon the failure to pay in a timely manner, and that the defendants retained those invoices without objection for a number of years. He declares that the billing rates charged to the defendants are "reasonable and customary in the industry," that the subject invoices were "generated by our accounting department and billing department and sent to Defendants' business address as the services were performed," and that "as of March 31, 2016, the grand total of $335,330.84 is due and owing" to the plaintiffs.
In his affidavit, Terence Beggins (Beggins) swears that he is the controller and head of the accounting departments for the plaintiffs, and that the plaintiffs' "general billing practice and procedure" includes generating an invoice and "to then ... mail out the invoice rendered to the client's address." He indicates that each invoice provides that all invoices "are due net 30 days. A late charge of 1% per month will be added to any unpaid balance after 30 days," that the subject invoices were sent by first class mail to the attention of Hanson at Pinewood's address, and that none of the invoices was returned to the plaintiffs' offices. He states that the invoices for the four projects, less some partial payments, leaves a balance of $116,076.99, that late charges amount to $191,565.98, that pre-judgment interest amounts to $27,687.87, and that "as of March 31, 2016, the grand total of $335,330.84 is due and owing from Pinewood and/or Hason to N & P and NPV."
At his deposition, Hason testified that he has been the president of Pinewood since 2000, that he is the only officer and the sole shareholder of the corporation, and that Mark Freedman (Freedman) was a "co-president" of the corporation from 2005 to 2011. He essentially testified that he did not recall receiving, paying, or objecting to the Pinewood Terrace invoices, that he did not recall making any partial payments of any such invoices, and that the only reason he could give for any partial payments was an "adjustment in the invoice because of the movercharge." He stated that it is his signature on the alleged contract/proposal for Pinewood Terrace, that the document is not a contract but a "menu" that allows him to order the services he needs, and that he remembers that the plaintiffs performed some engineering work for this project. He indicated that he engaged N & P to prepare a survey of his residence, that he did not recall receiving, paying, or objecting to the Beach Lane invoice, that he did not remember if the invoice was paid, and that he never saw the purported contract/proposal from the plaintiffs regarding the Preserve at Woodbury.
Hason further testified that Freedman returned a fully executed agreement regarding Arnold Drive in a cover letter dated May 21, 2007, that he received the invoices dated November 8, 2006 and December 29, 2006 regarding Arnold Drive, and that the plaintiffs performed the work reflected on the invoices, which he then paid. He stated that he did not recall receiving, paying, or objecting to the sixteen remaining Arnold Drive invoices, that he did contest a summary of the invoices sent by the plaintiffs sometime thereafter, and that he did not order or authorize the plaintiffs to do any work on Arnold Drive beyond that reflected in the first two invoices. He indicated that he retained Michael McCarthy, Esq. (McCarthy) to represent Pinewood regarding the Arnold Drive development project, that McCarthy met with the local municipality once or twice and realized that the project could not be built, and that the project "just died" at some point in time.
Hason further testified that he received a copy of a letter from McCarthy to the local municipality dated August 22, 2007 which indicated that McCarthy had recently been retained regarding the Arnold Drive project, and that Pinewood was preparing a conceptual plan for an application for a change of zoning regarding the property. He stated that he received a copy of a letter from McCarthy to Pinewood dated October 29, 2007 which indicated N & P would be involved in producing the plans and forms necessary for the filing of the application for a change of zoning. He indicated that he did not recall receiving, but did not have any reason to believe that he did not receive, a copy of a letter from McCarthy to the local municipality dated December 5, 2007, enclosing an application for a change of zoning including multiple copies of a land use and zoning map, a site development plan, a full environmental assessment form (EAF), and a rezoning survey. He acknowledged that he did not know who prepared the aforesaid documents, and that it was his signature on the subject application and rider, as well as on the Pinewood check sent to pay the relevant application fees.
Hason further testified that he did not recall receiving, but did not have any reason to believe that he did not receive, copies of letters from McCarthy to the local municipality or Pinewood dated January 18, 2008, January 29, 2008, February 13, 2008, February 14, 2008 regarding the Arnold Drive project. He stated that he did not know why another Pinewood check regarding application fees for the Arnold Drive project was forwarded to the local municipality by McCarthy on March 5, 2008, or why his co-president, Freedman, faxed a Pinewood letter to McCarthy dated May 22, 2008 proposing a "green build" option for Arnold Drive. He indicated that he did not recall receiving, but did not have any reason to believe that he did not receive, a copy of a letter from McCarthy to the local municipality dated November 4, 2008 enclosing a supplement to the Expanded EAF and indicating that the application for a change of zoning was still under review, and a copy of a letter to his attention dated April 23, 2009 indicating that McCarthy was meeting with the planning examiner from the local municipality regarding the Arnold Drive project. Hason further testified that his affirmative defense that the plaintiffs' services were "unwarranted and unnecessary" refers "only to Arnold Drive," that he received statements from the plaintiffs in May 2012, June 2012, and October 2012 upon his requests when he realized he was getting billed "for stuff I didn't order."
The Plaintiffs' First Cause of Action for Breach of Contract.
The common law elements of a cause of action for breach of contract are (1) the existence of a contract between the plaintiff and the defendant, (2) performance by the plaintiff, (3) the defendant's failure to perform, and (4) resulting damage ( Second Source Funding, LLC v. Yellowstone Capital, LLC, 144 AD3d 445, 40 NYS3d 410 [1st Dept 2016] ; Hampshire Props. v. BTA Building. & Developing, Inc., 122 AD3d 573, 996 N.Y.S.2d 129 [2d Dept 2014] ). When a party signs or accepts a written contract, absent fraud or other wrongful conduct on the part of the other contracting party, that party "is conclusively presumed to know its contents and to assent to them, and there can be no evidence for the jury as to his [or her] understanding of its terms" ( Metzger v. Aetna Insurance. Co., 227 N.Y. 411, 416, 125 NE 814 [1920] ; see Gillman v. Chase Manhattan Bank, 73 N.Y.2d 1, 537 N.Y.S.2d 787 [1988] ; Da Silva v. Musso, 53 N.Y.2d 543, 444 N.Y.S.2d 50 [1981] ; Daniel Gale Assoc. v. Hillcrest Estates, 283 A.D.2d 386, 724 N.Y.S.2d 201 [2d Dept 2001] ).
Here, the adduced evidence establishes the existence of written agreements between the plaintiffs and Pinewood regarding the Pinewood Terrace and Arnold Drive projects, and the plaintiffs' prima facie entitlement to summary judgment on their cause of action for breach of contract as to those agreements as to Pinewood only. The failure of a party to comply with the provisions of a contract constitutes a breach ( ABS Partnership v. AirTran Airways, Inc., 1 AD3d 24, 765 N.Y.S.2d 616 [1st Dept 2003], entitling the non-breaching party to the benefit of the bargain (see Astoria Caterers, Inc. v. J & P 1870 Realty Corp., 24 AD3d 478, 806 N.Y.S.2d 242 [2d Dept 2005] ; BLS Development. Corp. v. Broad Cove, 178 A.D.2d 394, 577 N.Y.S.2d 98 [2d Dept 1991] ). However, officers or agents of a corporation are not liable on its contracts if they did not purport to bind themselves individually (see AVOY RECORD CO. V. CARDINAL EXPORT CORP., 15 N.Y.2D 1, 254 N.Y.S.2D 521 [1964] ; SALZMAN SIGN CO. V. BECK, 10 N.Y.2D 63, 217 N.Y.S.2D 55 [1961] ). THE EVIDENCE REVEALS THAT NONPARTY FREEDMAN SIGNED THE ARNOLD DRIVE CONTRACT, AND THE PLAINTIFFS HAVE NOT SUBMITTED ANY EVIDENCE THAT HASON SIGNED THE PINEWOOD TERRACE CONTRACT PURPORTING TO BIND HIMSELF INDIVIDUALLY.
The Plaintiffs' Second Cause of Action for Account Stated.
"An account stated is an agreement between parties to an account based upon prior transactions between them with respect to correctness of account items and balance due" ( Landau v. Weissman, 78 AD3d 661, 662, 913 N.Y.S.2d 107, 108 , quoting Jim—(Marcia) Corp. v. Aquatic Constr., 195 A.D.2d 868, 600 N.Y.S.2d 790 [3d Dept 1993] ). "The agreement may be express or ... implied from the retention of an account rendered for an unreasonable period of time without objection and from the surrounding circumstances" ( Landau v. Weissman, 78 AD3d at 662, 913 N.Y.S.2d at 108, quoting Jim—(Marcia) Corp. v. Aquatic Constr., 195 A.D.2d at 869, 600 N.Y.S.2d 790 ). That is, by retaining billing statements and failing to object to the account within a reasonable time, the party receiving the bill implies that he or she agrees with the sender regarding the amount owed ( BRK Props., Inc. v. Wagner Ziv Plumbing & Heating Corp., 89 AD3d 883, 933 N.Y.S.2d 99 [2d Dept 2011] ).
However, a key element of a prima facie account-stated claim is proper evidence that the plaintiff delivered one or more invoices for the amount claimed to defendant, such that he received them (see Morrison Cohen Singer & Weinstein, LLP v. Brophy, 19 AD3d 161, 798 N.Y.S.2d 379 [1st Dept 2005] ; Morgan, Lewis & Bockius LLP v. IBuyDigital.com, Inc., 14 Misc.3d 1224 [A], 836 N.Y.S.2d 486 [Sup Ct, New York County 2007] ). Here, the plaintiffs' evidence did not establish that any of the invoices were properly mailed, so plaintiff should not have been afforded the presumption of receipt (see Nassau Insurance. Co. v. Murray, 46 N.Y.2d 828, 414 N.Y.S.2d 117 [1978] ; JP Morgan Chase Bank, N.A. v. Cohen, 26 Misc.3d 1215[A], 907 N.Y.S.2d 101 [Sup Ct, Albany County 2009]; Morrison Cohen Singer & Weinstein, LLP v. Brophy, supra ).
Although Beggins states in his affidavit that the "general billing practice and procedure of the plaintiffs includes ... mail[ing] out the invoice rendered to the client's address," the plaintiffs failed to submit any evidence of a regular office mailing procedure, the dates when any of the disputed invoices were mailed, or whether any of the mailings included cover or transmittal letters (see Morrison Cohen Singer & Weinstein, LLP v. Brophy, supra; Melito & Adolfsen, P.C. v. Travelers Indem. Co., 21 Misc.3d 1102(A), 872 N.Y.S.2d 692 [Sup Ct, New York County 2008] ). In addition, the plaintiffs failed to establish by competent evidence that the defendants made partial payment on those invoices (see Mintz & Gold v. Hart, 48 AD3d 526, 852 N.Y.S.2d 248 [2d Dept 2008] ; Morrison Cohen Singer & Weinstein v. Waters, supra ).
Failure to make a prima facie showing of entitlement to summary judgment requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v. Prospect Hospital, supra; Winegrad v. New York Univ. Med. Ctr., supra; Matinez v. 123–16 Liberty Ave. Realty Corp., 47 AD3d 901, 850 N.Y.S.2d 201 [2d Dept 2008] ). Accordingly, that branch of the plaintiffs' motion which seeks summary judgment on their cause of action for an account stated is denied. However, for the reasons set forth below, this cause of action is deemed academic when viewed within the context of the determinations herein.
The Plaintiffs' Third Cause of Action for Quantum Meruit.
To establish a claim in quantum meruit, a claimant must establish (1) the performance of the services in good faith, (2) the acceptance of the services by the person to whom they are rendered (3) an expectation of compensation therefor, and (4) the reasonable value of the services (see Miranco Constructive trust. v. Perel, 57 AD3d 956, 871 N.Y.S.2d 310 [2d Dept 2008] ; AHA Sales, Inc. v. Creative Bath Prods., Inc., 58 AD3d 6, 867 N.Y.S.2d 169 [2d Dept 2008] ; Atlas Refrigeration–Air Conditioning v. Lo Pinto, 33 AD3d 639, 821 N.Y.S.2d 900 [2d Dept 2006] ). A cause of action for quantum meruit is grounded in quasi-contract, which only applies in the absence of an express agreement, and is not really a contract at all, but rather a legal obligation imposed in order to prevent a party's unjust enrichment (see Scott v. Fields, 92 AD3d 666, 938 N.Y.S.2d 575 [2d Dept 2012] ).
Here, it is determined that the plaintiffs did not have written or oral contracts with the defendants regarding Beach Lane and the Preserve at Woodbury. However, the plaintiffs established that Hason individually requested and accepted their services regarding Beach Lane, that they rendered said services in good faith and in the expectation of compensation and, in light of the parties' prior dealings and custom and practice, that the $2,575 charge invoiced was reasonable. Similarly, the plaintiffs established that they are entitled to summary judgment on the grounds of quantum meruit for the $3,300 charge invoiced to Pinewood for the Preserve at Woodbury. Accordingly, the plaintiffs' have established their prima facie entitlement to summary judgment on their third cause of action as against Hason for $2,575 and as against Pinewood for $3,300.
The Plaintiffs' Fourth Cause of Action to Pierce The Corporate Veil.
In order to prevail in an action to pierce the corporate veil, a plaintiff must show that an individual defendant (1) exercised complete dominion and control over the corporation, and (2) used such dominion and control to commit a fraud or wrong against the plaintiff which resulted in injury (see Matter of Morris v. New York State Dept. of Taxation and Fin., 82 N.Y.2d 135, 141, 603 N.Y.S.2d 807 [1993] ; Seuter v. Lieberman, 229 A.D.2d 386, 644 N.Y.S.2d 566 [2d Dept 1996] ). The mere claim that the corporation was completely dominated by the defendant, or conclusory assertions that the corporation acted as their "alter ego," without more, will not suffice to support the equitable relief of piercing the corporate veil (see Matter of Morris v. New York State Dept. of Taxation and Fin., supra at 141–142; Abelman v. Shoratlantic Development. Co., 153 A.D.2d 821, 545 N.Y.S.2d 333 [2d Dept 1989] ). It is well established that a business can lawfully be incorporated for the very purpose of enabling its proprietor to avoid personal liability ( Seuter v. Lieberman, supra ). Absent a showing that "control and domination was used to commit wrong, fraud, or the breach of a legal duty, or a dishonest and unjust act" New York will not allow a piercing of the corporate veil (see Electronic Switching Indus., Inc. v. Faradyne Elec. Corp., 833 F.2d 418, 424 [2d Cir1987] ). Factors to be considered by a court in determining whether to pierce the corporate veil include failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and use of corporate funds for personal use (see Millennium Const. v. Loupolover, 44 AD3d 1016, 845 N.Y.S.2d 110 [2007] ; Shisgal v. Brown, 21 AD3d 845, 801 N.Y.S.2d 581 [1st Dept 2005] ). In addition, "[t]he decision whether to pierce the corporate veil in a given instance depends on the particular facts and circumstances" ( Weinstein v. Willow Lake Corp., 262 A.D.2d 634, 635, 692 N.Y.S.2d 667 [2d Dept 1999] ). "Veil-piercing is a fact-laden claim that is not well suited for summary judgment resolution" ( First Bank of Americas v. Motor Car Funding, 257 A.D.2d 287, 294, 690 N.Y.S.2d 17 [1st Dept 1999] ).
Here, the plaintiffs have not submitted any evidence to establish Hason's complete dominion and control over Pinewood and that he used that control to commit a fraud or wrong to injure them. Accordingly, that branch of the plaintiffs' motion which seeks summary judgment on their fourth cause of action is denied.
However, the Court finds that its inquiry should not end there. A court is empowered to search the record and grant summary judgment in favor of a nonmoving party ( CPLR 3212[b] ; 1133 Taconic, LLC v. Lartrym Serv., Inc., 85 AD3d 992, 925 N.Y.S.2d 840 [2d Dept 2011] ; Shore Development. Partners v. Board of Assessors, 82 AD3d 988, 918 N.Y.S.2d 566 [2d Dept 2011] ; Masi v. Kir Munsey Park 020 LLC, 76 AD3d 514, 906 N.Y.S.2d 88 [2d Dept 2010] ). However, this power applies only with respect to a cause of action or issue that is the subject of the motions before the court ( Dunham v. Hilco Const. Co., 89 N.Y.2d 425, 654 N.Y.S.2d 335 [1996] ; Masi v. Kir Munsey Park 020 LLC, supra; Lee v. City of Rochester, 254 A.D.2d 790, 677 N.Y.S.2d 848 [4th Dept 1998] ).
It has been held that an attempt to pierce the corporate veil does not constitute a cause of action separate from that against the corporation ( Rosen v. Kessler, 51 AD3d 761, 856 N.Y.S.2d 861 [2d Dept 2008] ; Hart v. Jassem, 43 AD3d 997, 843 N.Y.S.2d 121 [2d Dept 2007] ; Fiber Consultants, Inc. v. Fiber Optek Interconnect Corp., 15 AD3d 528, 792 N.Y.S.2d 89 [2d Dept 2005] ). Rather, a party may bring a second action to pierce the corporate veil in an attempt to enforce its rights as a judgment creditor of the corporation (see eg. Wm. Passalacqua Builders, Inc. v. Resnick Developers South, Inc., 933 F.2d 131 [2d Cir1991] [after partially recovering on a judgment against the corporation, plaintiffs instituted an action in federal court to, among other things, pierce the corporate veil]; Klein v. Loeb Holding Corp., 24 Misc.3d 899, 878 N.Y.S.2d 876 [Sup Ct, New York County 2009] [having secured a money judgment, the judgment-creditor commenced an action seeking to pierce the corporate veil] ). Upon reviewing the record, the Court determines as a matter of law that the defendants are entitled to summary judgment dismissing the plaintiff's fourth cause of action to pierce the corporate veil.
The Plaintiffs' Fifth Cause of Action For Attorney's Fees And Claim–Related Costs.
Generally, "an attorney's fees are deemed incidental to litigation and may not be recovered unless supported by statute, court rule or written agreement of the parties" ( Flemming v. Barnwell Nursing Home & Health Facilities, Inc., 15 NY3d 375, 379, 912 N.Y.S.2d 504 [2010] ; see Degregorio v. Richmond Italian Pavillion, Inc., 90 AD3d 807, 935 N.Y.S.2d 70 [2d Dept 2011] ). The written agreements between the plaintiffs and Pinewood regarding the Pinewood Terrace and Arnold Drive projects provide that the plaintiffs will submit invoices to Pinewood on their standard invoice forms, terms net 30 days, and that "[i]n the event that the invoice is not paid voluntarily and promptly ... the Client agrees to pay ... reasonable collection and attorney's fees equal to 25% of the total amount due at the time." Thus, the plaintiffs have established their prima facie entitlement to summary judgment on their fifth cause of action allowing recovery for the plaintiffs' costs and reasonable attorneys' fees. However, the plaintiffs have not established the amount they are due for the costs of collection and attorneys' fees. The reasonableness of attorney's fees is always subject to court scrutiny ( First Nat. Bank of E. Islip v. Brower, 42 N.Y.2d 471, 398 N.Y.S.2d 875 [1977] ). The court is not bound by the fixed percentage set forth in the contract regarding said fees, and has inherent authority to determine reasonable attorney fees ( Prince v. Schacher, 125 AD3d 626, 2 NYS3d 585 [2d Dept 2015] ; Orix Credit Alliance v. Grace Indus., 261 A.D.2d 521, 690 N.Y.S.2d 651 [2d Dept 1999] ).
The Plaintiffs' Application To Dismiss The Defendants' Counterclaim.
Although designated as their first and only counterclaim, the defendants set forth several discrete claims in the numbered paragraphs within it, as follows:
AS AND FOR A FIRST COUNTERCLAIM
12. Plaintiff brings a frivolous claim against both Pinewood and Hason.
13. Plaintiff's claim against Hason has no basis in law or in fact. Plaintiff has not performed any of the alleged work for Hason.
14. Plaintiffs claims against Pinewood have no basis in law or in fact. A Portion of the alleged claim is clearly beyond the statute of limitations. A vast majority of Plaintiff's claims is for services that were not required or requested or for materials that are of no use to the Defendants.
15. Defendants should be jointly and severally awarded statutory damaged against the Plaintiff for having knowingly brought frivolous claims.
16. Defendants demand an award of no less than $10,000 with the final amount to be demanded after motion or trial.
For the reasons set forth above, it is determined that the plaintiffs have established their prima facie entitlement to summary judgment dismissing all of the allegations in the defendants' counterclaim. In addition, because the defendants' counterclaim essentially incorporates and reiterates the defendants affirmative defenses, it is determined that the plaintiffs have established their prima facie entitlement to summary judgment dismissing the defendants' affirmative defenses. To the extent that the defendants' allege that a "portion of the alleged claim is clearly beyond the statute of limitations," it does not defeat the granting of summary judgment as set forth herein. It is undisputed that the Pinewood Terrace and Arnold Drive agreements were entered into within the six years prior to the commencement of this action, that any claim for services performed pursuant to said contracts is timely, and that the work performed by the plaintiffs for Beach Lane and Preserve at Woodbury was completed within that same period.
The Defendants Opposition to the Plaintiffs Motion for Summary Judgment.
The plaintiffs having established their prima facie entitlement to summary judgment as set forth herein, it is then incumbent upon the defendants to produce evidence in admissible form sufficient to require a trial of the material issues of fact ( Roth v. Barreto, supra; Rebecchi v. Whitmore, supra; O'Neill v. Fishkill, supra ). In opposition to the plaintiffs' motion, the defendants submit the affirmation of their attorney, Hason's affidavit, and the affidavit of an expert witness. In his affirmation, counsel for the defendants contends that there is an issue of fact requiring a trial of this action as to whether the plaintiffs should have performed "at least 75% of the billed for services" regarding the Arnold Drive project, and points out that all the Pinewood Terrace invoices were disputed, and that there was no agreement regarding Beach Lane. The affirmation of an attorney who has no personal knowledge of the facts herein, is insufficient to defeat a motion for summary judgment ( 2 N & P and NPV. St. Corp. v. Getty Saugerties Corp., 68 AD3d 1392, 892 N.Y.S.2d 217 [3d Dept 2009] ; Johannsen v. Rudolph, 34 AD3d 338, 824 N.Y.S.2d 276 [1st Dept 2006] ; see also Sanbria v. Paduch, 61 AD3d 839, 876 N.Y.S.2d 874 [2d Dept 2009] ).
In his affidavit, Hason swears that Pinewood and other companies that he is associated with had done work with N & P for years prior to the issues in this action, that N & P offered to provide the survey for Beach Lane as a professional courtesy, and that some of the work done for Pinewood Terrace was not done correctly or was not billed correctly. He states that the "partial payments" of the Pinewood Terrace invoices were the amounts N & P agreed to accept as payment in full of those invoices, and that "my attorney informs me that a few of the invoices in the Pinewood Terrace case ... were initially billed more that six years prior to the commencement of [the plaintiffs'] action ... and are ... time barred." He indicates that McCarthy, Pinewood's attorney on the Arnold Drive project, was not authorized to schedule the work performed by the plaintiffs for that project, that he never approved such work, and that there was no reason to do the work "because the project was a nullity."
Here, Hason has failed to raise an issue of fact regarding his knowledge and ratification of McCarthy's actions regarding the Arnold Drive project. A party may not, through an affidavit submitted on summary judgment, contradict his or her own deposition testimony in order to feign an issue of fact ( Andrew T.B. v. Brewster Cent. School Dist., 67 AD3d 837, 889 N.Y.S.2d 240 [2d Dept 2009] ; Knox v. United Christian Church of God, Inc., 65 AD3d 1017, 884 N.Y.S.2d 866 [2d Dept 2009] ). In addition, as set forth above, the statute of limitations issue and whether the defendants made partial payments on Pinewood Terrace invoices that are time-barred are academic. Mere conclusions and unsubstantiated allegations are insufficient to raise any triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980] ; Perez v. Grace Episcopal Church, 6 AD3d 596, 774 N.Y.S.2d 785 [2d Dept 2004] ; Rebecchi v. Whitmore, supra ).
In his affidavit, Lonnie Ruffo (Ruffo) swears that he is a licensed engineer with over sixteen years of experience, and that "in reviewing Plaintiff's claim, the work allegedly completed, and the total work billed" he finds it "impossible that Plaintiff moved forward on [the Arnold Drive] project, as it should have been absolutely clear that the project was not buildable." He states that, it was evident upon the completion of the conceptual plan for the project, that a full size sewage treatment plant would be required making the construction of the ninety-five units that Pinewood anticipated impossible, and reducing the unit yield by one-third.
It is well settled that the opinion testimony of an expert "must be based on facts in the record or personally known to the witness" (see Hambsch v. New York City The respondent. Auth., 63 N.Y.2d 723, 480 N.Y.S.2d 195 [1984], citing Cassano v. Hagstrom, 5 N.Y.2d 643, 646, 187 N.Y.S.2d 1 [1959] ; Shi Pei Fang v. Heng Sang Realty Corp., 38 AD3d 520, 835 N.Y.S.2d 194 [2d Dept 2007] ; Santoni v. Bertelsmann Property, Inc., 21 AD3d 712, 800 N.Y.S.2d 676 [1st Dept 2005] ). An expert "may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion" (see Shi Pei Fang v. Heng Sang Realty Corp. supra ). "Speculation, grounded in theory rather than fact, is insufficient to defeat a motion for summary judgment" (see Zuckerman v. City of New York supra; Leggis v. Gearhart, 294 A.D.2d 543, 743 N.Y.S.2d 135 [2d Dept 2002] ; Levitt v. County of Suffolk, 145 A.D.2d 414, 535 N.Y.S.2d 618 [2nd Dept 1988] ). Here, to the extent that Ruffo's affidavit attempts to render an expert opinion, it primarily consists of theoretical allegations with no independent factual basis and it is therefore speculative, unsubstantiated, and conclusory (see Mestric v. Martinez Cleaning Co., 306 A.D.2d 449, 761 N.Y.S.2d 504 [2d Dept 2003] ). In addition, Ruffo fails to cite any regulation or industry standard in support of his contentions. Thus, the affidavit lacks probative value and is insufficient to raise an issue of fact (see David v. County of Suffolk, 1 NY3d 525, 755 N.Y.S.2d 229 [2003] ; Ioffe v. Hampshire House Apt. Corp., 21 AD3d 930, 800 N.Y.S.2d 757 [2d Dept 2005] ).
Moreover, Ruffo fails to indicate his expertise or training regarding change of zoning applications, and whether he reviewed the deposition transcripts of the parties to this action or any other materials having a bearing on the issues herein. He fails to discuss, let alone establish, how the reduction in the unit yield of the Arnold Drive project made the project "unbuildable." Accordingly, his expert opinion has failed to raise a triable issue of fact to defeat summary judgment.
Conclusion.
The defendants have failed to raise an issue of fact to defeat the plaintiffs' motion for summary judgment to the extent that the plaintiffs have established their prima facie entitlement as discussed above. Accordingly, the plaintiffs motion is granted to the extent that they are awarded summary judgment against Pinewood on their first cause of action for breach of contract regarding the Pinewood Terrace and Arnold Drive projects, against Hason on their third cause of action for quantum meruit as to the Beach Lane, and against Pinewood on their third cause of action for quantum meruit as to the Preserve at Woodbury project, and the motion is otherwise denied. In addition, summary judgment is granted dismissing the plaintiff's case of action to pierce the corporate veil.
In light of the determination that the plaintiffs are entitled to recover damages for the professional services rendered on all four of the development projects herein, albeit based on different legal theories, it is determined that the plaintiffs' second cause of action for an account stated is academic under the circumstances. Accordingly, the plaintiffs second cause of action is dismissed.
However, despite establishing their entitlement to partial summary judgment as set forth herein, the plaintiffs have not established the amount of their contract damages, or the amount of the attorney's fees and costs that they should recover. Thus, the Court sets this matter down for a trial to determine the amount of the plaintiffs' contract damages, costs of collection and reasonable attorneys' fees. Counsel for the plaintiffs shall serve a copy of this order with notice of its entry upon counsel for the defendants and the Calendar Clerk of this Court. Upon service of a copy of this order with notice of entry, the Calendar Clerk of this Court is directed to place this action on the Calendar Control Part calendar for the next available trial date.