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ACC Concrete Corp. v. Core Continental Construction, LLC

Supreme Court, New York County

August 8, 2013


Unpublished Opinion




Plaintiff, an excavation and foundation subcontractor, sues defendants to recover $183, 000.00, $18, 000.00 for original work and $165, 000.00 for extra work and equipment, that plaintiff provided on a construction project on premises owned by defendant Marigold LLC, for which defendant Core Continental Construction, LLC (CCC), was the general contractor. Plaintiff claims four legal bases on which it is entitled to payment. The first claim seeks damages against CCC for breach of contract. The second claim seeks recovery against CCC, and the third claim seeks recovery against Marigold, both based on quantum meruit or unjust enrichment. The fourth claim is on behalf of a proposed class under New York Lien Law § 77 to recover funds held in trust for the project by defendant Bank of East Asia. The court previously granted Bank of East Asia's motion to dismiss and Marigold's cross-motion for summary judgment dismissing plaintiff's fourth claim against these defendants. C.P.L.R. §§ 3211(a)(7); 3212(b) and (e). Therefore no claim remains against Bank of East Asia.

All remaining parties move for summary judgment. C.P.L.R. § 3212(b). Marigold moves for summary judgment dismissing the quantum meruit or unjust enrichment claim against Marigold: the complaint's third claim and only remaining claim against this defendant. Plaintiff separately moves for summary judgment on all the complaint's remaining claims, all against CCC. In response to plaintiff's motion, CCC cross-moves for summary judgment dismissing plaintiff's claims against this defendant. For the reasons explained below, the court grants Marigold's and plaintiff's motions and CCC's cross-motion in part, but otherwise denies the parties' motions and cross-motion.


The moving parties, to obtain summary judgment, must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012); Smalls v. AJI Indus.. Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384 (2005); Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81 (2003). If the moving parties satisfy this standard, the burden shifts to the opponent to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. Morales v. D & A Food Serv., 10 N.Y.3d 911, 913 (2008); Hvman v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744 (2004). In evaluating the evidence for purposes of the parties' motions, the court construes the evidence in the light most favorable to the opponent. Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; Cahill v. Triborouqh Bridge & Tunnel Auth., 4 N.Y.3d 35, 37 (2004).

CCC alternatively moves to dismiss plaintiff's claims against it based on the complaint's failure to state a cause of action, C.P.L.R. § 3211(a)(7), but CCC nowhere identifies any defect in the claims as pleaded. For dismissal of the fourth claim, discussed below, CCC relies on the earlier decision concluding that Marigold never received any funds from Bank of East Asia. Otherwise, CCC contends that documentary evidence negates plaintiff's claims against this defendant. C.P.L.R. § 3211(a)(1). Because CCC supports its defense based on documentary evidence with deposition testimony, which is not documentary evidence under C.P.L.R. § 3211(a)(1), the court denies CCC's motion insofar as it seeks dismissal under C.P.L.R. § 3211(a)(7) or under § 3211(a)(1). Correa v. Orient-Express Hotels, Inc., 84 A.D.3d 651 (1st Dep't 2011); Weil Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 271 (1st Dep't 2004). See Flowers v. 73rd Townhouse LLC, 99 A.D.3d 431 (1st Dep't 2012).


Since plaintiff filed a note of issue February 3, 2012, the deadline for summary judgment motions was Monday, June 4, 2012. C.P.L.R. § 3212(a). Marigold made its motion when it was served timely May 30, 2012. C.P.L.R. § 2211; Esdaille v. Whitehall Realty Co., 61 A.D.3d 435, 436 (1st Dep't 2009); Gazes v. Bennett, 38 A.D.3d 287, 288 (1st Dep't 2007).

CCC's cross-motion for summary judgment served June 26, 2012, was untimely. C.P.L.R. § 3212(a). The court may consider CCC's cross-motion, however, because it was in response to plaintiff's timely motion for summary judgment and seeks summary judgment dismissing the same claims on which plaintiff seeks a judgment in plaintiff's favor. Alonzo v. Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 A.D.3d 446, 448-49 (1st Dep't 2013); Palomo v. 175th St. Realty Corp., 101 A.D.3d 579, 581 (1st Dep't 2012); Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 71 A.D.3d 538, 540 (1st Dep't 2010); Filannino v. Triboroucrh Bridge & Tunnel Auth., 34 A.D.3d 280, 281 (1st Dep't 2006).


To establish breach of a contract, plaintiff must show a contract, that plaintiff performed and CCC breached the contract, and that CCC's breach caused plaintiff to sustain damages. Harris v. Seward Park Hous. Corp., 79 A.D.3d 425, 426 (1st Dep't 2010). See Tutora v. Siegel, 40 A.D.3d 227, 228 (1st Dep't 2007). Plaintiff must plead the specific terms of the agreement that CCC breached. Marino v. Vunk, 39 A.D.3d 339, 340 (1st Dep't 2007); Giant Group v. Arthur Andersen LLP, 2 A.D.3d 189, 190 (1st Dep't 2003); Kraus v. Visa Intl. Serv. Assn., 304 A.D.2d 408 (1st Dep't 2003). The absence of agreement on a material term of the contract renders it unenforceable even if the parties ...

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