The motion of plaintiff Design Plumbing & Heating Services, Inc. (hereinafter "Design") for, inter alia, summary judgment against defendants Block Properties, Inc. (hereinafter "Block") and Peter Block, individually is denied.

In relevant part, this matter concerns Design's efforts to collect on a guaranty of payment executed by Block of the sums owed to the plaintiff/subcontractor by general contractor Accurate Blacktop, Inc. (hereinafter "Accurate") for plumbing and heating work performed at 2045 Forest Avenue, Staten Island, New York, which premises were owned and operated by defendants Block, Forest Management and CVS Pharmacy, Inc. (hereinafter "CVS"). It is undisputed that in or about March of 2008, a portion of the commercial space within said premises was being readied for tenancy by CVS and, in pursuance of same, Block hired Accurate as its general contractor to renovate the space. Accurate hired Design as its plumbing and heating subcontractor at the negotiated price of $126,474.00 (see February 1, 2008 "Contract"; Plaintiff's Exhibit B). For its work at the above address, Design subsequently filed a series of mechanic's liens totaling $142,914.00.^[FN1]

Design claims that it commenced work on or about March 10, 2008, but was subsequently [*2]"forced" to abandon the job due to the general contractor's failure to pay its invoices. Accurate defended its actions via letter dated May 13, 2008 (see Plaintiff's Exhibit N) informing Design that (1) the contract terms were "net 30 upon completion" (i.e., payment to be made within 30 days of completion of Design's work), and (2) its work on the project was far from complete. According to the complaint, plaintiff had tendered invoices to Accurate (1) in March, 2008 in the amount of $65,099.00, (2) in April, 2008 in the amount of $11,090.00 and (3) in May, 2008 in the amount of $23,309.00, none of which were paid. As a result of the foregoing, a letter of "guarantee" dated May 14, 2008 was given to Design by Peter Block in his capacity as President of Block Properties, Inc. in order to facilitate resumption of the plumbing and heating work. That letter (Plaintiff's Exhibit A) provides, in relevant part: "I am hereby authorized on behalf of Block Properties, Inc. as President and Sole Shareholder to Guarantee payment of all monies due for the job [at 2045 Forest Avenue]....[S]hould said payment not be made by the Contractor Accurate Blacktop, you shall send notice to Block Properties, Inc. of said default and forward copies of the outstanding invoices...Payment shall be made directly to your company by Block Properties, Inc." It is upon this wording that Design claims entitlement to summary judgment against Block in the amount of $67,914.00 ^[FN2].

In opposition to the motion, individual defendant Peter Block avers that Block Properties, Inc. had already paid the sum of $538,008.72 to Accurate so that the latter could pay all of its subcontractors (see Block's Exhibit H). He further states that he never intended to guaranty the payment of any amount to the subcontractor after the general contractor had been paid in full (see November 4, 2010 Affidavit in Opposition of Peter Block, para 16), and that the "guarantee letter", which was tendered by fax on June 20, 2008 (see Plaintiff's Exhibit A), was only intended to apply to Design's future bills. Thus, according to Block, the only invoice to which its guarantee could apply was Design's subsequent invoice in the amount of $4,900.00 dated June 24, 2008. It is also claimed that the guarantee was given in consideration of Design's oral agreement to (1) refrain from filing any further mechanic's liens on the property; (2) remove the mechanic's liens filed to date; and (3) return to the job site. As a result, Block maintains that triable issues of fact include (a) whether Design's contract with Accurate called for any payment prior to completion; (b) whether the subject guaranty was intended to apply to labor and materials previously invoiced; and (c) whether Design complied with the alleged oral conditions. In addition, it is claimed that Block's counterclaim against plaintiff for damages in the amount of $436,000.00 for, e.g., costs associated with Design's delay in completing the project precludes summary judgment (see Block's Exhibit D).

It is axiomatic that the moving party on a motion for summary judgment bears the initial burden of making a prima facie showing of entitlement to judgment as a matter of law (Alvarez v. Prospect Hosp., 68 NY2d 320, 324; Northwest Bank Minn v. Sabloff, 297 AD2d 722, 723). Indeed, the burden of demonstrating a triable issue of fact does not shift to the non-moving party until the movant has satisfied its initial burden (see Winegrad v. New York Univ. Med Ctr., 64 NY2d 851,853). In the opinion of this Court, plaintiff has failed to demonstrate a prima facie entitlement of summary judgment.

[*3]In order to establish a right to judgment as a matter of law in an action to recover on a guaranty, the moving party must submit proof of the guaranty, the default of the principal obligor and the guarantor's failure to pay (see City of New York v. Clarose Cinema Corp., 256 AD2d 69; Valencia Sportswear v. D.S.G. Enters., 237 AD2d 171; cf. Gera v. All-Pro Athletics, Inc., 57 AD3d 726, 727). Here, there is no dispute as to the defaults of Accurate and Block. Assuming arguendo that plaintiff has also established that the guaranty in question is unambiguous on its face, was intended to apply both to Accurate's pre-existing and subsequently accruing debt to Design (a matter which Block disputes) and that Design fully complied with any quid pro quo, the latter has still failed to establish its right to judgment in the amount of $67,914.00 as a matter of law, or to the release of the $75,000.00 paid into court by Peter Block, personally. Particularly noteworthy in this regard is the difference between the gross amount of plaintiff's claimed lien ($142,914.00) and the contract price of $126,474.00, as well as the failure of the tendered invoices to total the amount of the lien. Also relevant is the absence of any waiver of Block's right to assert any defenses, set-offs, counterclaims or cross claims to which it may be entitled (cf. Sterling Natl Bank v. Biaggi, 47 AD3d 436; Gannett Co v. Tesler, 177 AD2d 353; H.H. & F.E. Bean, Inc. v. Travelers Ind Co., 67 AD2d 1102). "[S]ummary judgment should not be granted where there is any doubt as to the existence of a triable issue or where the existence of an issue is arguable" (American Home Assur. Co., v. Amerford Intl. Corp., 200 AD2d 472, 473 [citations omitted]).

It is, moreover, the opinion of this Court that the causes of action asserted against Block in the complaint are "directly connected" to Block's counterclaim, and that a severance thereof would prejudice a substantial right of this defendant (see generally Moniz v. National Constructors, Inc., 276 App Div 797).That branch of plaintiff's motion which seeks leave to amend its Ninth Cause of Action to assert a claim against Peter Block, individually, and for an award of counsel fees is also denied. Plaintiff has presented no argument in support of its request to pierce the corporate veil of Block Properties, Inc. in order to interpose a claim against its principal in his individual capacity. Neither has it demonstrated that Block's failure to pay the sum demanded is frivolous (see 22 NYCRR Part 130). Hence, no compelling reason for an award of attorney's fees has been established.

In view of the above, plaintiff's claimed right to access the $75,000.00 deposited with the Richmond County Clerk by Peter Block, personally, is premature.

Accordingly, it is

ORDERED, that plaintiff's motion is denied in its entirety.

E N T E R,

Dated:January 25, 2011s/ Philip G. Minardo

J.S.C.