Opinion
Index 611830/2018
02-04-2021
OAK LEAF CONSTRUCTION GROUP, INC. Plaintiff, v. MARIUSZ CZERWINKSI and LAUREN CZERWINSKI, Defendants.
WILLIAM D. SHAPIRO, ESQ. Attorney for Plaintiff. LASKY & STEINBERG, P.C. Attorney for Defendant Mariusz Czerwinski. THE SALLAH LAW FIRM, P.C. Attorney for Defendant Lauren Czerwinski.
Unpublished Opinion
WILLIAM D. SHAPIRO, ESQ. Attorney for Plaintiff.
LASKY & STEINBERG, P.C. Attorney for Defendant Mariusz Czerwinski.
THE SALLAH LAW FIRM, P.C. Attorney for Defendant Lauren Czerwinski.
PRESENT: Hon. DAVID T. REILLY Justice.
DAVID T. REILLY Judge.
Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the plaintiff, dated October 27, 2020, and supporting papers; (2) Notice of Cross Motion by defendant Lauren Czerwinski, dated November 9, 2020; (3) Amended Notice of Cross Motion by defendant Lauren Czerwinski, dated November 9, 2020, and supporting papers; (4) Notice of Cross Motion by defendant Mariusz Czerwinski, dated November 10, 2020, and supporting papers; (5) Affirmation in Opposition by the plaintiff, dated November 10, 2020; and (6) Reply Affirmation by defendant Mariusz Czerwinski, dated November 17, 2020, and supporting papers; it is
ORDERED that the motion by the plaintiff for an Order pursuant to CPLR 3212, granting summary judgment in its favor on the issue of liability and setting the matter down for a trial on damages, is granted to the extent of granting summary judgment in its favor on the issue of liability on the first cause of action in the complaint, and is otherwise denied; and it is further
ORDERED that the cross motion by defendant Lauren Czerwinski for an Order pursuant to CPLR 3212, granting summary judgment dismissing the complaint against her, is deemed withdrawn, the notice of motion by which it was brought on having been superseded by the filing of an amended notice of motion dated November 9, 2020; and it is further
ORDERED that the cross motion (brought on by amended notice of motion dated November 9, 2020) by defendant Lauren Czerwinski for an Order pursuant to CPLR 3212, granting summary judgment dismissing the complaint against her, is denied; and it is further
ORDERED that the cross motion by defendant Mariusz Czerwinski i/s/h/a Mariusz Czerwinksi for an Order pursuant to CPLR 3212, granting summary judgment dismissing the complaint against him, is denied.
This is an action to recover damages based on the defendants' alleged failure to pay for renovations to their marital residence located at 12 Shore Road, Remsenburg, New York.
The plaintiff pleads five causes of action in its complaint, all of which are premised on a contract implied in law or fact and seek damages "believed to be in excess" of $70,000.00: the first, for breach of implied contract, the second, sounding in quasi contract, the third, for recovery in quantum meruit, the fourth, for unjust enrichment, and the fifth, for breach of the implied covenant of good faith and fair dealing.
It appears that the defendants' marriage was dissolved in 2017 and, as a consequence, that they are represented by separate counsel. In his answer, Mariusz pleads two cross claims against Lauren. The first seeks indemnity for any judgment the plaintiff obtains against Mariusz. The second seeks indemnity for any and all claims and expenses associated with the defense of this action, irrespective of whether the plaintiff obtains a judgment against Mariusz.
Now, discovery having been completed and a note of issue having been filed on March 12, 2020, the plaintiff moves for summary judgment, and the defendants separately cross-move for summary judgment.
As a threshold procedural matter, the Court-noting that a prior summary judgment motion by Mariusz, addressed solely to his cross claims against Lauren, was granted in part and denied in part by Order dated October 23, 2020-finds no reason to deviate from the general rule proscribing successive motions for summary judgment. "Generally, successive motions for summary judgment should not be entertained absent a showing of newly discovered evidence or other sufficient cause" (Sutter v Wakefem Food Corp., 69 A.D.3d 844, 845, 892 N.Y.S.2d 764, 765 [2010]). "Parties will not be permitted to make successive fragmentary attacks upon a cause of action but must assert all available grounds when moving for summary judgment. There can be no reservation of any issue to be used upon any subsequent motion for summary judgment" (Levitz v Robbins Music Corp., 17 A.D.2d 801, 232 N.Y.S.2d 769, 770-771 [1962]). As it does not appear why Mariusz could not have sought the requested relief on his earlier motion, his current motion must be denied (see Phoenix Four v Athertini, 245 A.D.2d 166, 665 N.Y.S.2d 893 [1997]).
Turning to the substantive issues presented, the Court finds that the plaintiff established its prima facie entitlement to summary judgment on its first cause of action. A party asserting a claim for breach of an implied contract to pay for services generally must prove that the services were performed and accepted with the understanding on both sides that there was an obligation to pay (Sivin-Tobin Assoc, v Akin Gump Strauss Hauer & Feld, 68 A.D.3d 616, 892 N.Y.S.2d 71 [2009]). When services are rendered at the request of the recipient or under circumstances from which it can fairly be inferred that both parties expected that the services would be compensated, there is a contract implied-in-fact to pay for them (e.g. NY PJI 4:1, Comment). Based on the deposition testimony of David Fracapane, the plaintiffs owner, and the documentary proof accompanying the plaintiffs motion, it appears that the plaintiff was hired by the defendants to remodel the first and second floor of the residence and to remodel or reconstruct the deck, siding, roofing, windows, and doors; that the plaintiff was to be paid for labor and reimbursed for material expenses paid on behalf of the defendants; that the plaintiff performed the subject work beginning in May 2015 and continuing into 2016; that several invoices were sent by e-mail to the defendants, some of which were paid and some of which were not; that one of the invoices not paid was Invoice No. 1039, dated February 9, 2016, which lists charges from a prior unpaid invoice for work performed from June 25, 2015 through July 7, 2015 in the amount of $14,770.00, plus charges for work performed from July 8, 2015 through July 24, 2015 in the amount of $15,120.00, plus unreimbursed expenses in the amount of $11,322.91 (for a total of $41,212.91), plus 2% monthly interest on all unpaid principal; that this invoice was initially delivered to the defendants on or about July 9, 2015, and has since been redelivered to the defendants every month with updated interest charges; and that the 'amounts owing remain unpaid. The plaintiff also submits transcripts of the defendants' respective depositions, at which they each testified as to an agreement whereby the plaintiff would perform renovations at the residence beginning in 2015, as well as copies of e-mails from Mariusz to David Fracapane dated August 27, 2015 and January 6, 2016, in which Mariusz acknowledged the existence of an outstanding debt owed to the plaintiff by the defendants arising out of that agreement.
The defendants, in opposition, failed to raise an issue of fact. Although Lauren contends that the defendants made payments to the plaintiff in excess of the amounts which the plaintiff now claims are due, she does so in a conclusory manner, without any documentary support. Absent proof, beyond the unsubstantiated statements in her affidavit, to establish that any of the amounts she claims were paid after June 2015 were, in fact, paid, the Court finds her claim to be without an evidentiary basis (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). To the extent that the defendants argue that there was no agreement' between or among the parties concerning the accrual of interest, that argument is reserved for determination after an inquest on damages. And insofar as it is claimed that the interest charged "is usury in nature and cannot stand"-assuming that the Court were even to consider granting summary judgment based on an unpleaded defense-it suffices to note that an agreement cannot be usurious unless it is a loan or forbearance of money (General Obligations Law § 5-501; Seidel v 18 E. 17th St. Owners 79 N.Y.2d 735, 586 N.Y.S.2d 240 [1992]; Donatelli v Siskind, 170 A.D.2d 433, 565 N.Y.S.2d 224 [1991]) and that the imposition of a late payment charge, as here, is not a forbearance (Protection Indus. Corp. v Kaskel, 262 A.D.2d 61, 691 N.Y.S.2d 457 [1999]; Waierbury v City of Oswego, 251 A.D.2d 1060, 674 N.Y.S.2d 530 [1998]).
Summary judgment is granted, therefore, in the plaintiffs favor on its first cause of action; the plaintiffs remaining causes of action, each of which is based on the same operative facts and seeks the same relief as the first cause of action, are dismissed without prejudice (see Fine-Cut Diamonds Corp. v Shetrit, 22 Misc.3d 1117[A], 880 N.Y.S.2d 872 [2009], citing Payne v New York, Susquehanna & W. R.R. Co., 201 NY 436 [1911]); and Lauren's motion is correspondingly denied.