[*1]
Allied-Lynn Assoc., Inc. v Alex Bro., LLC
2005 NY Slip Op 52362(U) [18 Misc 3d 1147(A)]
Decided on August 12, 2005
Supreme Court, Allegany County
Brown, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on August 12, 2005
Supreme Court, Allegany County


Allied-Lynn Associates, Inc., Plaintiff, .

against

Alex Bro., LLC, Oakmont Group, Inc., John Doe, such name being fictitious and representing all unknown, Defendants who are necessary parties to this action pursuant to New York Lien Law section 44 and fellow trust beneficiaries pursuant to New York Lien Law Article 3-A, Brodbrick Holt, Bath National Bank, N.A., Scott Mehlenbacher d/b/a Scott Mehlenbacher Drywall, La Forge Disposal Service, Inc., K.S. La Forge Excavating and General Contractor, Inc., Rogers & Tenbrook, Inc., Wickes Lumber, Inc., Vrd Decorating, Inc., Pierce Steel Fabricators, Inc., Kelley Bros., Kitchen Specialty Craftsmen, Inc., David S. Merrill Roofing and Sheet Metal, Defendants.




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Sellstrom Law Firm, LLP (Stephen E. Sellstrom, Esq., of counsel) for plaintiff Allied-Lynn

Holmberg, Galbraith, VanHouten & Miller (Dirk A. Galbraith, Esq., of counsel) for defendants Oakmont Group and Broderick Holt

The Crossmore Law Firm (Edward Y. Crossmore, Esq., of counsel) for defendant Alex Bro, LLC

G. William Gunner, Esq. for defendants K.S. LaForge Excavating

Moore, Woodhouse & Pawlak, LLP (David B. Pawlak, Es??. of counsel) for defendant Kitchen Specialty

Nesper, Ferber & DiGiacomo, LLP (Gabriel J. Ferber, Esq., of counsel) for defendant Window Specialist

Embser & Woltag, P.C. (J. Timothy Embser, Esq., of counsel) for defendant L. C. Whitford

Thomas P. Brown, J.

This action by subcontractor Allied-Lynn to foreclose a mechanic's lien on real property relates to the "Alfred Apartments Project", involving the construction of a three-story apartment building located at 38-44 North Main Street in the Village of Alfred, New York. The action was commenced by Allied-Lynn on November 5th, 2002.

The property owner is defendant Alex Bro., LLC. The general contractor is defendant Oakmont Group, Inc., whose principal and President is defendant Broderick Holt. The contract sum payable by Alex Bro., LLC to the general contractor, defendant Oakmont, was $2,339,650.00. Plaintiff Allied-Lynn provided heating and plumbing services and materials to the general contractor, defendant Oakmont.

Defendant Bath National Bank, N.A. is the construction lender for the project. The other named defendants are various subcontractors or material-providers.

The causes of action asserted by plaintiff Allied-Lynn in its amended complaint may be summarized as follows:

(1) Allied-Lynn seeks to foreclose its mechanic's lien;

(2) Alternatively, Allied-Lynn alleges that general contractor Oakmont diverted $118,228.00 of Lien Law Article 3A trust funds, of which Allied-Lynn was a beneficiary;

(3) Alternatively, Allied-Lynn alleges that the owner Alex Bro., LLC, in connivance with general contractor Oakmont, participated in trust fund diversion;

(4) Alternatively, Allied-Lynn alleges that trust funds were wrongfully paid to parties unknown, to the detriment of Allied-Lynn; and

(5) Allied-Lynn seeks recovery against Broderick Holt, principal of Oakmont, on the alleged theory that he forged a lien waiver.

Issues


The case comes before the Court pursuant to the Notice of Motion of subcontractor plaintiff Allied-Lynn dated June 8th, 2004, and the Court's Order to Show Cause granted June 30th, 2004, on the motion of the property owner, Alex Bro., LLC. Alex Bro., LLC has moved to vacate 12 liens.

In moving for such relief, Alex Bro., LLC relies upon Lien Law section 11, contending that eight of the purported mechanic's liens were not served upon the owner.

Alex Bro., LLC also relies upon Lien Law section 17, contending that five of the purported [*2]mechanic's liens should be vacated for having expired.

In addition, relying upon Lien Law section 9(2), Alex Bro., LLC contends that the purported mechanic's lien of Kitchen Specialty Craftsmen, Inc. should be declared invalid, for not properly identifying the owner of the premises.

Window Specialist, Inc., has cross-moved for an order permitting amendment of the caption of the action to specifically name the "John Doe" parties.

Finally, plaintiff Allied-Lynn moves for an order granting summary judgment declaring that defendant Oakmont was not in default as a result of untimely, faulty or incomplete work prior to Alex Bro., LLC's alleged breach of the contract. Alternatively, plaintiff Allied-Lynn moves for an order disqualifying, under the advocate-witness rule, the attorney for defendant Alex Bro., LLC.

The owner, Alex Bro., LLC claims deficiencies in the pertinent workmanship. The general contractor, Oakmont, opposes any requirement that it post additional security, and it also disputes some of the claims of the subcontractors and materialmen.

Summary Judgment Issue

Summary judgment is a drastic remedy which should be denied if there are, even arguably, genuine, material issues of fact (Gateway Development Manufacturing Inc. vs Commercial Carriers. Inc., 296 AD2d 821 (4th Dept: 2002); Fisons Corp. vs Sweeteners Plus. Inc., 258 AD2d 872 (4th Dept.: 1999)). Summary judgment is the procedural equivalent of trial (Falk vs Goodman, 7 NY2d 87, 91).

On such a motion, the record must be viewed in the light most favorable to the party opposing the motion (Sergeant vs Murphy Family Trust, 292 AD2d 761 (4th Dept.: 2002)), and such party must be given the benefit of every favorable inference (Spicola vs Priacci, 2 AD3d 1368 (4th Dept.: 2003)). The role of the Court on a motion for summary judgment is issue-finding, not issue-determination (Potter vs Polozie, 303 AD2d 943 (4th Dept.: 2003)). Moreover, a court should not assess credibility on a motion for summary judgment (Ferrante vs American Lung Association, 90 NY2d 623, 631).

On the other hand, however, when there is no genuine, material issue to be resolved at trial, the case should be summarily decided - in whole or in part - and "an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated" (Andre vs Pomeroy, 35 NY2d 361, 364).

Applying these principles to the instant case, the Court concludes that plaintiff Allied-Lynn has made a prima facie showing of entitlement to judgment on the threshold question of liability as a matter of law, having tendered sufficient evidence to demonstrate the absence of any material [*3]issues of fact with respect to such question (Gi??ffrida vs Citibank Corp., 100 NY2d 72, 81; Alvarez vs Prospect Hospital, 68 NY2d 320, 324). Plaintiff Allied-Lynn having made such a showing, the burden shifts to the defendant owner, Alex Bro., LLC, as the party opposing the motion for summary judgment, to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial on the question of liability (Alvarez vs Prospect Hospital, supra, at 324, citing Zuckerman vs City of New York 49 NY2d 557, 562). While Alex Bro., LLC has identified multiple factual issues determination of the question of liability does not depend upon resolution of such issues. Although such issues are pertinent to the question of damages, the Court concludes that Alex Bro., LLC has not met its responsive burden on the issue of liability.

The party opposing such a motion must lay bare affirmative proof showing that there is a bona fide, relevant issue of fact requiring a trial (Friends of Animals vs Associated Fur Mfrs., 46 NY2d 1065; Rotuba Extruders vs Ceppos, 46 NY2d 223, 231). Mere accusation or speculation, or allusion to a feigned or "shadowy semblance" of an issue is not sufficient to defeat summary judgment (Capelin Assoc. vs Globe Mfg. Corp., 34 NY2d 338, 341; Shapiro vs Health Ins. Plan, 7 NY2d 56))

Contrary to the suggestion of defendant Alex Bro., LLC, the contract in this case was not ambiguous (see American Guarantee and Liability Insurance Company vs CNA Reinsurance Co. 16 AD3d 154,155 (1st Dept.: 2005)). Where, as here, the controlling agreement is clear and unambiguous, the parties must be held to their bargain, and such agreement must be enforced in accordance with its terms (see W. W. W. Assoc. vs Giancontieri, 77 NY2d 157, 162). Moreover, where the governing contract is facially unambiguous, there is no need for the introduction of extrinsic evidence for purposes of construction of the contract.

Particularly in view of the principle that every contract contains an implied covenant of good faith and fair dealing (Cherry vs Resource America Inc., 285 AD2d 989 (4th Dept.: 2001)), the Court concludes that plaintiff Allied-Lynn has established as a matter of law, with respect to the issue of liability that:

(1) Alex Bro., LLC and Oakmont Group, Inc.'s rights and responsibilities to each other are controlled by their written agreement (AIA Document A-101-1997 including the documents incorporated therein by reference, to wit, AJA Document A-201-1997 General Conditions of Contract and Construction) (hereinafter the "written agreement").

(2) Pursuant to the written agreement, the architect had authority to act on behalf of Alex Bro., Inc. regarding certain contract matters including interpreting and deciding matters concerning performance under, and requirements of the contract documents.

(3) The date of substantial completion was the date certified by the architect in accordance with the written agreement. [*4]

(4) The architect certified "substantial completion" of the construction project on August 28th, 2002.

(5) Alex Bro., LLC was contractually bound by the determination of the architect relative to substantial completion.

(6) Alex Bro., LLC materially breached and terminated the written agreement as follows:

(a) On or about September 15th, 2002, Alex Bro., LLC retained Feenaughty and Allen to complete the project.

(b) Alex Bro., LLC's retention of Feenaughty & Allen, Inc. to complete the project less than three weeks after the date of substantial completion was not a reasonable time to allow Oakmont Group, Inc. to complete the project and correct claimed faulty work.

(c) Alex Bro., LLC did not obtain pre-termination certification from its architect that sufficient cause existed to terminate the written agreement.

(d) Alex Bro., LLC failed to notify Oakmont Group, Inc. of the claimed faulty work prior to termination

(e) Alex Bro., LLC did not notify and give Oakmont Group, Inc. an opportunity to make correction of claimed faulty work within one year after the date of substantial completion.

(f) Pursuant to the written agreement Alex Bro., LLC has waived any claim for breach of warranty.

Accordingly, the Court concludes that Allied-Lynn's motion for summary judgment on the issue of liability should be granted.

The Court next considers Allied-Lynn's motion to compel discovery.

Discovery Issue

Plaintiff Allied-Lynn has moved for an order compelling defendant Alex Bro., LLC to produce the "prior document" described in paragraphs 99 through 106 of Allied-Lynn's motion papers, which document, if it exists, is a "link" in the succession of quotes from Feenaughty & Allen, Inc. Allied-Lynn asks, in the alternative, that Alex Bro., LLC be precluded from providing evidence at trial as to any offsets or damages.

With respect to this issue, if Alex Bro., LLC is unable to provide Allied-Lynm with a copy of such "prior document", rather than granting absolute preclusion, the Court will permit Allied-Lynn to invite the Court to draw an adverse inference from the failure to produce such [*5]document.

The Court next considers Allied-Lynn's motion for limitation of the claim by Alex Bro., LLC for damages or offsets.

Limitation of Offset Claims for Consequential Damages

The Court agrees with plaintiff Allied-Lynn that, by virtue of the language of the contact itself, Alex Bro., LLC is deemed to have waived any remedy against Allied-Lynn for "consequential damages".

Therefore, at the damages inquest, Alex Bro., LLC shall be precluded accordingly.

Subcontractor Liens

Pending determination at the inquest of the amount, if any, due and the amount of funds available, the Court will defer consideration of the dependent claims for enforcement of the other liens, and will defer consideration of the validity and effectiveness of such other liens.

Attorney-Disqualification Issue

Subcontractor plaintiff Allied-Lynn, citing the advocate-witness rule, moved for an order compelling defendant Alex Bro., LLC's counsel, Edward Y. Crossmore, Esq., to withdraw from representation in this action. While a court must be vigilant to prevent even the appearance of impropriety in legal representation (Kheel vs Continental Baking Company, 219 AD2d 846 (4th Dept.: 1995), and while any doubts on such an issue should be resolved in favor of disqualification (Mater of Stober vs Gaba & Stober, P.C., 259 AD2d 554 (2nd Dept.: 1999)), the issue is ultimately addressed to the discretion of the court (Olmoz vs Town of Fishkill, 258 AD2d 447 (2nd Dept.: 1999)).

Furthermore, a party is entitled to be represented in ongoing litigation by counsel of its own choosing, a valued right not to be lightly abridged, absent a clear showing by the moving party of a need for disqualification (Zutler vs Drivershield Corp., 15 AD3d 397 (2nd Dept.: 2005)).

Disqualification may be required only when it is likely that it is necessary for the particular attorney to give testimony as a witness (S & S Hotel??tures Ltd. Partnership vs 777 S. H. Corp., 69 NY2d 437, 445 - 446; see also, Unger vs Unger, 15 AD3d 389 (2nd Dept.: 2005)).

On the record before it, the Court discerns no need for the disqualification of Mr. Crossmore, and Allied-Lynn's application for such relief must be denied.

Accordingly, it is hereby [*6]

ORDERED that plaintiff Allied-Lynn Associates, Inc. is entitled to partial summary judgment, on the issue of liability, as against defendant Alex Bro., LLC; and it is further

ORDERED that in the event defendant Alex Bro., LLC is not able to furnish plaintiff Allied-Lynn with the "prior quote" document described above, Allied-Lynn may request an inference adverse to Alex Bro., LLC at the time of the inquest; and it is further

ORDERED that Alex Bro., LLC shall be deemed to have waived the right to assert an offset claim for consequential damages; and it is further

ORDERED that plaintiff Allied-Lynn's motion for the disqualification of Edward Y. Crossmore, Esq. is denied; and it is further

ORDERED that a hearing with respect to the issue of damages shall be held on Monday, September 26th, 2005 at 1:00p.m.; and it is further

ORDERED, pursuant to CPLR 104 and 2001, and in the interest of expediency, that the Clerk is hereby authorized and directed to file this Decision and Order and all papers submitted prior to the date of signing such Decision and Order, notwithstanding any omissions or irregularities in the caption of such papers.

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HON. THOMAS P. BROWN

Acting. Supreme Court Justice

Dated: August 12th, 2005

Village of Belmont, New York