S.L. Victory Constr. & Dev. v. 40-50 Brighton First Rd. Apts. Corp.

S.L. Victory Constr. & Dev. v 40-50 Brighton First Rd. Apts. Corp. 2024 NY Slip Op 31051(U) April 2, 2024 Supreme Court, Kings County Docket Number: Index No. 506650/2021 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 03/28/2024 02:24 PM INDEX NO. 506650/2021 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 03/28/2024

SUPREME COU:RT OF THE STATEOF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 --------- ------- ------------------------x S. L VICTORY CONSTRUCTION & DEVELOPMENT CORPORATION and 'T&S CONSTRUCTION CORP., plaintiffs, Decision Bnd order - again.st - Index No. 506650/2021 40,--,50 BRIGHTON FIRST ROAD APARTMENTS CORP. and TKR PROPERTY SERVICES, INC., April 2, 2024 Defendants, - - , - - - - - - - - - - - - - - - - - - - , ___ ,________ ,_____ , __ ,X PRESENT: HON. LEON RUCHELSMAN Motion Seq. #2 & #3

The defendant TKR Property Services Inc., [hereinafter 'TKR'] has moved pursuant to CPLR §3212 seeking summary judgement dismissing the entire complaint. The plaintiff has cross-,moved seeking summary judgement. The motions have been opposed respectively. Papers were submitted by the parties and arguments held and after reviewing a11 the arguments, this court now makes the following determination.

The plaintiffs are two construction companies that were hired to perform work at defendant's premises loc~ted at 40 Brighton First Road and 50 Brighton First Road, both in Kings County. TKR was the inariagemerit company hired during the relevant time periods. The complaint alleges that plaintiff S. L Victory is owed $407, 153 1 fci'r work performed and T&S Construction Corp.,

1 It should be noted that while the compiaiht asserts the c1mount owe.ci s; 1 i victory is $407; 153., the owner of s. I. Victory, Andrei Tsi.;irlet.ski. subm~tt~d an affidavit which states the amount owed is $407~ 162 (Affidavit of Andred Tsiarletski, 9ll [NYSCEF Doc. No- .. 81] ) i a negligible dif.fererice of $9,

1 of 6 FILED: KINGS COUNTY CLERK 03/28/2024 02:24 PM INDEX NO. 506650/2021 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 03/28/2024 i-s owE3d $15_5., 940 2 for work per.formed. The ahovI=:! noted parties have now moved seeking summary ju.dg.ement. The plai:ntiff argue.s they have p.;resented undisputed: evid:ence that they performe.c:i work and haye not been, paid for such wcrrk. 'rKR asse.-rts that as management company arid agent for the owner of the premises they -cannot ·be iiable .for any unpaid balances owed :t,11.e p-1-ainti.ffss Defendant 40-50 Brighton Firs·t Road Apartments. Cor_p •. ;_ ar_g_u_es there are quE3stions of fact whether a contract even existed and whether the ·plaintiff's. are, -e·ntitled to· all the invoices. they have .st.1.bmi tted.

Conclusions . .of Law Where the material_ facts at issue iri a case a:r.e in dispute summary judgment cannot be granted ·(zucketman v. City of N·ew York,_ 4:9 NYS2d 557., 427 -NYS2d .595 [1980]), Generally, it i.s for _the jury,. t_he trier of fact to . determine the legal cause .of any injury, however, where -.only one copclus..;ion Il,la_y ·_be d:rawn .from the :E_acts. the11. :the question of iesal cause. may be decided by the t"iial court as a matter· of law (Marino V'. Jamison, JJ39 AD"3-d 1021, "1"36 NYS.3d 324 [ 2d .. Dept.., 2021) , It is well settled that to succeed upon a qlaim of breach of It should .be noted that whi.le the complaint asserts t'he amount owed ·Ti;,;-.S C::'on$truption is $15_5.,:9.40, the own.er o"f T&S Construction, Arkadi Shterenberg, submitted an affidavit which .states the amount owed is .$.104:, 640 (A£fidavit of Arkadi Sht.erenberg, .11 [NY.SCEF Do_c. No. :sz)), _a difference of<$51, 300.

2 of 6 FILED: KINGS COUNTY CLERK 03/28/2024 02:24 PM INDEX NO. 506650/2021 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 03/28/2024 contract the plaintiff must establish the existence of a contract, the plaintiff 's performan ce, the defendant 's breach and resulting damages (Harris v. Seward Park Housing Corp., 79 AD3d 425, 9 lJ NYS2d 161 [ pt Dept. , 2 010] ) . Further, as explained in Gianelli v. RE/MAX of· New York, 144 AD3d 861; 41 NYS3d 273 L2d Dept., 2016], "a breach of contract cause o.:E action fails as a matter of law in the absence of any showing that a specific provision of the contract was breached" (id).

Of courser there can be no contract absent·a binding agreement between the partie_s. The plaintiff s insist that although there was nd coristrticti ori cdhtract, the parties understood that the plaintiff s would submit invoices of work performed and that if each invoice was accepted by the de.fendant s and entered into their database for payment then automatic approval was assumed. Thus, this ''usage of trade" establishe d· a meeting of the minds between the patties whibh is now enforceab le. Indeed, UCC §l-3.03(c) states that a "'usage of trade' is i"lny practice or method of dealing having such r.'egUlarity of observanc e in a place, vocation, or trade as to justify an expectatio n that i t will be observed with respect to the transactio n in question. The existencE:! and scope of such a usage must be provj:':!d as facts. If it is establishe d that such c.i usage is embodied in a trade code dr similar record, the interpreta tion of the record is a qµestion of law" (id).

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.J-i.ow~v~-r, to .E:!stablish usage of t~ade as· a valid basis to ccmcl.t;i_de cl t;";Ontri;tCt exis.ted expert evidence is generally .necessary (Didzbalis v. Sheridan Transportatio n Company, ·.t062 WL 3l619.b7.i [~LD.N.°Y. 2002]). There is no _e~pert testimony supporting the usage of trade in this case. Furthermore, the .aff ida.v"i ts submi tt:ed do· ·not fare .any better e:$t-ablishing contract formc}tion v;La: usa91:; of trade~- Tbt;; affidavits of the owri.e.rs of S. I. Victory artd T&S Construction both state that ~'once the work was p.e.-r:formed, and i,f .the wor.k was_ -done- si;itisfactori ly, ';['l<::R w011·1ct a.dmit the d~b_t anr;i sufftciency of ·the wor:k done by Plaintiffs by placing a stai.nip of apptcival oh the 'invoices is·sued by the· Plaintiffs" ("Affidavit o·f Andrei Tsicl:r.tets)ci, 18 [NYSCEf Doc.

No. 81], Affidavit of Arkadi Shterenberg, <JIB (NYSCEF Doc. No. 82]) . Howe.ver, those self-serving assertions .canno-t be a·ftorp.ed any w•eight (.§..@, .Matter of Barney S-chogel Inc. ,. 12. B. R. 6 9'7 rs .. o._N. Y. 1997]).

The plaintiffs a_rgue that Howard Manciel -an pw:ner of TKR admitted the _invoice system described by the plaintiff's Ctinfi;cmed t.he us-age of trade sufficient ·to es.t-abli·sh the f orrnatton o:f ,a c9ntract :• However, a careful review o-f Mr. Mandel's testimony demonstrates that he did not admi.t the ac.ceptanc;·e of an invoice, from the pl~-intiff ,. s coristi tuted a::n acceptance of the contract. Rather, he me.rely t..e:sti.t:i~d th_at when the. invoice was received it_ was process:ed for payment.' That

4 of 6 FILED: KINGS COUNTY CLERK 03/28/2024 02:24 PM INDEX NO. 506650/2021 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 03/28/2024 p_roce.s.-s did not ine. an a. contra-ct had been formed and that if a: subsequent review of the work warrantednon- -:payment then a breach occurred. .Moreover, there axe serious questions wh_ether usage of tracle could ewen. he est·a};)lishl;'!d in this_: :case since i:h New· York such usage of tr,ade rriust be "so notorious" within the industry that every party· ·s·hould be aware of it {.British Internationa l Insurance Company .Ltd. v·. Segura s La Rep.ubl i ca, S . A. , 3 4 2 .F. 3d 78 [2d. Cir. 2003]). There is no evidence .cif such pervasive .conduct throughout the industry.. Indeed, .:j_t is .-cl.iffi.cult to ass_.ert that a one-sided uncterstandin. g of contr::_act formati_on, . . isolated. to this case, could_ create t:ont:i:acts without the defendants l:iein:g awanI of the.ir existence·,. Thus, the me·~e processi.n.g of invofces doe-~ not foreclose later analysis of the propriety of the invoice in the tTr".st p1a·ce. There is no basi.s to a:rgue once t.he invq,.ice w_as processed the defendants. are fo.ret::l.osed from challf::!-n.girig or not paying the invoice based upon issues regarding the work perfo--rmed. Theref·cfre, there·. are s-µrely q11estio.ns o:f- fact. wl:let;:.he.r any contract was formed and consequentl_)'. whether the plaini:iffs are entitle.cl to summary judg·ement. Consequently , the p1·ai·ntif.f 1 ·s mc;:,tion . seeking .. summary j.udge:ment is deni:.ed" Turning to TKR' s motion seeking summary j udgernent ori the grounds .tt can. _have no tnd¢pendent liability as· an agent of the owne:r, the p1a-intiffs have not r.eally oppo.sed that motion qt_her thah to seek their own sµmmary judge~ent motion. Upbn a revi·ew

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.of the evidence presented, TKR maint~ins nb independent responsibility pursuant to its agreement with the owner.

Consequently, TKR's motion seeking summary judgement dismissing the lawsuit as to them is granted.

So ordered.

ENTER:

DATED: April 2, 2024 Brooklyn N. Y. Hon.

JSC

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