Opinion
2014-01-28
HIGH TECH ENTERPRISES & ELECTRICAL SERVICES OF N.Y., INC., Plaintiff–Respondent, v. EXPERT ELECTRICAL, INC., et al., Defendants–Appellants.
Robert L. Folks & Associates, LLP, Melville (Cindy A. Kouril of counsel), for appellants. Bryan A. McKenna, New York, for respondent.
Robert L. Folks & Associates, LLP, Melville (Cindy A. Kouril of counsel), for appellants. Bryan A. McKenna, New York, for respondent.
TOM, J.P., SWEENY, DeGRASSE, GISCHE, CLARK, JJ.
Appeal from order, Supreme Court, New York County (Marvin L. Schweitzer, J.), entered October 23, 2012, deemed an appeal from the judgment, same court and Justice, entered February 19, 2013, in plaintiff's favor in the amount of $197,041.32, and, so considered, said judgment unanimously reversed, on the law, without costs, the judgment vacated, that portion of defendant's motion seeking summary judgment dismissing plaintiff's first (breach of contract), second (payment bond) and fourth (account stated) causes of action granted, and plaintiff's cross motion for summary judgment with respect to those causes of action denied. The Clerk is directed to enter judgment dismissing the complaint.
Plaintiff is not entitled to summary judgment on its first cause of action for breach of contract against defendant Expert Electric, Inc., sued here as Expert Electrical, Inc. (Expert). Contrary to plaintiff's claim, Expert did not stipulate to plaintiff's performance under the contract. Rather, it stipulated that Expert invoiced the City of New York $136,837.62 for plaintiff's work and received payment from the City in that amount. The evidence submitted by defendants regarding plaintiff's work included affidavits stating that plaintiff walked off the job, leaving its work largely incomplete and, in some instances, unsatisfactorily performed ( see Harris v. Seward Park Hous. Corp., 79 A.D.3d 425, 426, 913 N.Y.S.2d 161 [1st Dept.2010] ).
Further, defendants' motion for summary judgment dismissing the cause of action for breach of contract should have been granted. Plaintiff refused to comply with paragraph 11 of the subcontract between plaintiff and Expert which required plaintiff to furnish an affidavit stating that all labor and material have been paid for in full, and that no payments were due to plaintiff.
Defendants' motion for summary judgment dismissing the fourth cause of action (account stated, against Expert) should have been granted and plaintiff's cross motion for summary judgment on this claim should have been denied. Plaintiff failed to comply with Expert's request for documentation, including payroll reports, so that Expert could process plaintiff's requisitions ( seeLabor Law § 220[3–a][a][iii] ). Pursuant to the public works contract Expert entered into with the City, the filing of payrolls is a “condition precedent” to payment for work done on the project. Plaintiff's invoices ( i.e., requisitions) do not constitute an account stated because plaintiff failed to satisfy the condition precedent for payment, namely, the submission of payroll reports ( see Sabre Intl. Sec., Ltd. v. Vulcan Capital Mgt., Inc., 95 A.D.3d 434, 438, 944 N.Y.S.2d 36 [1st Dept.2012] ).
The motion court should have granted defendants' motion for summary judgment dismissing the second cause of action (for payment on the bond issued by defendant Arch Insurance Group, Inc., d/b/a Arch Insurance Company [Arch] ), and should have denied plaintiff's cross motion for summary judgment on this claim. Plaintiff claims that it is entitled to summary judgment against Arch because Expert has no defenses to the claims for nonpayment. However, as indicated above, Expert has defenses to nonpayment.
The motion court properly granted plaintiff's cross motion for summary judgment dismissing the first counterclaim and properly denied defendants' motion for summary judgment on this claim seeking damages for plaintiff's failure to pay the prevailing wage since there is no private right of action for underpayment of wages pursuant to Labor Law § 220 until there has been an administrative determination that has either gone unreviewed or been affirmed in the claimants-employees' favor ( see Pesantez v. Boyle Envtl. Servs., 251 A.D.2d 11, 12, 673 N.Y.S.2d 659 [1st Dept.1998] ) and the private right of action belongs only to the employees who have been underpaid ( see P & T Iron Works v. Talisman Contr. Co., Inc., 18 A.D.3d 527, 528, 795 N.Y.S.2d 306 [2d Dept.2005] ). We note that there is no evidence of any complaints by plaintiff's employees and that the time to bring such a claim has expired ( seeLabor Law § 220–b[2][a][1] ).
Plaintiff's cross motion for summary judgment dismissing the third and fourth counterclaims (wilful exaggeration of a lien [ seeLien Law §§ 39 and 39–a] ) was properly granted since this is not an action for foreclosure and the lien has since expired ( see Wellbilt Equip. Corp. v. Fireman, 275 A.D.2d 162, 166–167, 2000 WL 1512946 [1st Dept.2000] ).
The motion court properly granted plaintiff's cross motion for summary judgment dismissing the fifth counterclaim for attorneys fees and properly denied defendants' motion for summary judgment on this claim because paragraph 17 of the contract which provides that plaintiff “will not file any lien ... against any moneys due or to become due to the Contractor from the Owner” and requires plaintiff to “reimburse the Contractor for any and all damages, including attorney's fees” if a lien is filed, is unenforceable as against public policy ( seeLien Law § 34).
We have considered defendants' remaining arguments and find them unavailing.