Valverde Construction Corp.
SDS Great Jones LLC, SDS Builders LLC and Louis V. Greco Jr. Index No. 650813/2012
Motion Date 09/03/2013
HON. ELLEN M. COIN A.J.S.C.
The following papers, numbered 1 to __ were read on this motion to/for_
Notice of Motion/Order to Show Cause - Affidavits - Exhibits 1
Answering Affidavits - Exhibits 2
Reply Affidavits _3
Cross-Motion:  Yes [X] No
Defendants move pursuant to CPLR 3211(a)(1) and (7) to dismiss the second and third causes of action. SDS Great Jones LLC is the owner of 25 Great Jones Street and undertook a construction project to renovate the building located at that property (the Project). SDS Builders LLC was the general contractor on the Project and plaintiff Valverde Construction Corp. (Valverde) is a subcontractor that provided concrete and metal work. Greco is the Manager of SDS Great Jones.
The second and third causes of action seek $1, 250, 000.00 for Valverde's work on the Project and allege that defendants were liable for failing to maintain trust funds to pay Valverde. The second cause of action alleges violations of Lien Law Article 3-A, in, that defendants did not deposit funds into a "required" escrow ii account, but instead improperly diverted the funds to their own use. The third cause of action also alleges that defendants converted \ trust funds of Valverde in the sum of $1, 250, 000.00.
Defendants now move to- dismiss the second and third causes of action on the ground that documentation which sets forth each S expenditure made from the Trust Funds, including the date, amount and purpose, wholly undermines Valverde's allegations.
In opposition, plaintiff argues that the records do not fully resolve the issue of whether any of the payments made were "appropriate for the specific items or whether they should have been used to pay the Plaintiff for the monies due for their services." Plaintiff does, not identify any specific "gaps" in defendants' submissions or list any missing, documents that it would require in discovery.
After oral argument, the Court notified both sides that pursuant to CPLR 3211(c), it would convert this motion to dismiss info one for summary judgment and afforded both sides an opportunity to make additional submissions on or before September 3, ...