Andrew H. Roos, respondent,
King Construction, etc., et al., appellants. Index No. 51160/13
- October 28, 2019
& Rossi, Brewster, NY (David Simon and Sean H. Lewis of
counsel), for appellants.
Bartels & Feureisen, LLP, White Plains, NY (Michael Fahey
of counsel), for respondent.
C. DILLON, J.P. RUTH C. BALKIN FRANCESCA E. CONNOLLY ANGELA
G. IANNACCI, JJ.
DECISION & ORDER
action, inter alia, to recover damages for breach of
contract, the defendants appeal from a judgment of the
Supreme Court, Westchester County (David F. Everett, J.),
dated October 5, 2016. The judgment, upon an order of the
same court (David S. Zuckerman, J.), dated September 28,
2015, granting those branches of the plaintiff's motion
which were for summary judgment on the causes of action
alleging breach of contract and conversion and diversion of
trust funds, and after a damages inquest, is in favor of the
plaintiff and against the defendants in the total sum of
that the judgment is reversed, on the law, with costs, those
branches of the plaintiff's motion which were for summary
judgment on the causes of action alleging breach of contract
and conversion and diversion of trust funds are denied, the
order dated September 28, 2015, is modified accordingly, and
the matter is remitted to the Supreme Court, Westchester
County, for further proceedings consistent herewith.
action involves, inter alia, an alleged breach of a
construction contract. During the construction of the
plaintiff's home, the parties had various disputes
regarding the work flow of the project and the coordination
of construction. The plaintiff ultimately terminated the
defendants' work prior to the completion of the project.
Thereafter, the plaintiff commenced this action seeking,
inter alia, damages for breach of contract and conversion and
diversion of trust funds. The plaintiff sought
cost-of-completion damages and the return of a payment in the
sum of $50, 000 that, according to the plaintiff, constituted
diverted trust funds. The Supreme Court partially granted the
plaintiff's motion for summary judgment and entered a
judgment awarding damages after an inquest. The defendants
that the defendants' prior appeal from the order dated
September 28, 2015, was dismissed by a decision and order on
motion of this Court dated July 5, 2017, for failure to
timely perfect. While the defendants ordinarily would be
precluded from relitigating the issues which could have been
raised on the prior appeal (see Rubeo v National Grange
Mut. Ins. Co., 93 N.Y.2d 750, 754; Bray v Cox,
38 N.Y.2d 350, 353), under the circumstances of this case, we
exercise our discretion to determine the issues raised on the
instant appeal from the judgment (see Solomon v Green Bay
Sanitation Corp., 164 A.D.3d 854, 854-855; Saunders
v Tarsia, 124 A.D.3d 620, 620; Ravina v Hsing Hsung
Chuang, 95 A.D.3d 1288, 1288-1289).
seeking summary judgment bears the initial burden of
demonstrating its prima facie entitlement to the requested
relief (see Winegrad v New York Univ. Med. Ctr., 64
N.Y.2d 851, 853; Zuckerman v City of New York, 49
N.Y.2d 557, 559; Friends of Animals v Associated Fur
Mfrs., 46 N.Y.2d 1065, 1067). Only if that burden is met
does the burden then shift to the party opposing summary
judgment to tender evidence, in a form admissible at trial,
sufficient to raise a triable issue of fact (see Alvarez
v Prospect Hosp., 68 N.Y.2d 320, 324; Zuckerman v
City of New York, 49 N.Y.2d at 562; Friends of
Animals v Associated Fur Mfrs., 46 N.Y.2d at 1068).
Supreme Court should have denied those branches of the
plaintiff's motion which were for summary judgment on the
causes of action alleging breach of contract and conversion
and diversion of trust funds. Regarding the breach of
contract cause of action, the plaintiff failed to establish
his entitlement to judgment as a matter of law. Triable
issues of fact exist, including which party was at fault for
construction delays (see Buck Constr. & Dev.,
Inc. v Hetzel, 165 A.D.3d 875, 876) and whether the
plaintiff breached the contract by preventing the
defendants' performance (see Plainview S. & S.
Concrete Co. v NVNG Dev. Corp., 151 A.D.2d 654, 655).
Regarding the causes of action alleging conversion and
diversion of trust funds, the plaintiff's own submissions
raise triable issues of fact as to whether, and to what
extent, trust funds may have been diverted by the defendants
(see Lien Law §§ 70, 71; J. Petrocelli
Constr., Inc. v Realm Elec. Contrs., Inc., 15 A.D.3d
444, 447; cf. Wallkill Med. Dev., LLC v Sweet
Constructors, LLC, 83 A.D.3d 695, 696).
plaintiff failed to satisfy his prima facie burden, the
sufficiency of the defendants' opposition papers need not
be addressed (see Winegrad v New York Univ. Med.
Ctr., 64 N.Y.2d 851). However, a review of the record
reveals that the defendants' submissions raise further
triable issues of fact. As the defendants point out, their
opposition to the plaintiff's motion was properly
supported with admissible evidence and should have been
considered as such by the Supreme Court. A party opposing a
motion for summary judgment may submit an attorney
affirmation that annexes deposition testimony and other
evidence instead of relying on affidavits of fact based upon
personal knowledge (see Olan v Farrell Lines, 64
N.Y.2d 1092, 1093; City of New York v First Natl. Ins.
Co. of Am., 79 A.D.3d 789, 790; Enriquez v B & D
Dev., Inc., 63 A.D.3d 780, 781).
we reverse the judgment and ...