This is an action for breach of contract and negligence, commenced by the plaintiff by filing a summons and complaint on [*2]April 6, 2011. In her complaint, the plaintiff alleges that she entered into two contracts with the defendants, one to repair fire damage and the other to remodel the kitchen in plaintiff's residence. Plaintiff alleges that the defendants breached both the fire damage contract and the kitchen remodeling contract by failing to properly complete the majority of the work and by negligently causing damage to plaintiff's furniture, floors, baseboards and other property. Issue was joined by service of defendants' answer dated June 28, 2011 containing affirmative defenses and a counterclaim for a money judgment against the plaintiff for failure to pay for extra repairs, work, labor and services performed at plaintiff's residence. By decision and order dated June 12, 2012, this court granted plaintiff's motion to dismiss the defendants' counterclaim, without opposition, on the ground that the defendant is an unlicenced contractor.

In support of the instant motion, plaintiff, Paula Cimador Silone, an Office Manager at Axinn, Veltrop & Harkrider LLP, submits a 16 page affidavit dated January 29, 2013 in which she states that on July 6, 2009 an electrical fire occurred at her home located at 49-03 21st Avenue, Jackson Heights, New York. The fire damaged the dining room, living room, kitchen, hallway, roof and porch of her home. As a result of the damage from the fire she retained Doric Construction, owned by Michael Trachanis, in August 2009 to repair all the areas damaged by the fire, both inside and outside the house. The parties agreed that the total cost of the labor and goods to repair the fire damage was $9,000.00. Doric gave the plaintiff a written "proposal" dated August 29, 2009 setting forth the work to be done and the total cost. The proposal was signed by Trahanis. The plaintiff initially made a payment of $1500 towards the contract price by check made payable to Michael Trahanis personally and by payment of $8,000 by checks made payable to Doric Construction.

In September 2009, she retained Doric to remodel her kitchen except for the purchase of new appliances, cabinets and counter tops. The agreed upon price for the kitchen renovation was $11,000. Plaintiff states that in total she paid the defendant $18,500. She states that the agreement with respect to the kitchen remodeling was oral but that Doric provided her with a proposal which provided the specifications and total cost for the kitchen remodeling. The proposal pertaining to the kitchen is not signed by either party.

Plaintiff alleges that she agreed with Doric that she would receive credit for her purchase of cabinets and a granite counter top but that she never received credit for those purchases. She also states that defendants' work was not performed in a proper [*3]and timely manner and that defendant ultimately stopped coming to her home without finishing the project. Plaintiff submits a list of items which were not completed or which she contends were improperly done. She states that she hired another contractor, Adrien Pera, to fix, finish, and commence work that was not completed by defendants. She states that the cost of the work not done, left unfinished or not done in a satisfactory manner was $9,400.80.

Adrien Pera, submits an affidavit dated January 23, 2013, stating that he was hired by the plaintiff to fix and complete the "faulty and incomplete work of Doric Construction at the plaintiff's residence. He concluded that much, if not all of the work contracted for, was done incorrectly or not done at all. He states that he remedied all of the problems working at the residence for 19 days and charged plaintiff $3,700 for completing the work and $1,070.80 for supplies.

Plaintiffs counsel, Evan Storm Esq., contends that Ms. Silone fulfilled her contractual obligations by paying defendants the full cost of the job and after being paid the full amount the defendants failed to return to the residence on a regular basis despite not having completed or begun most of the work. The plaintiff contends that defendant last worked at the residence on September 27, 2010 without fulfilling their contractual obligations with respect to the fire damage repairs and the kitchen remodeling. Counsel asserts that based upon Ms. Silone's affidavit, as well as the affidavit of Mr. Pera, who completed the project, and the accompanying exhibits including photographs of the incomplete work, plaintiff has established, prima facie, as a matter of law, that the defendants breached their obligations under each contract and as such is entitled to summary judgment on the issue of liability (citing Remodeling Constr. Servs. v Minter, 78 AD3d 1677 [2d Dept. 2010][homeowner established his entitlement to judgment as a matter of law inasmuch as contractor breached the contract by refusing to perform its work pursuant to the contract]; Nash v Baumblit Constr. Corp., 72 AD3d 1037 [2d Dept.2010][plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability against defendant contractor by setting forth evidence that the contractor's work product was defective]).

In opposition, Michael Trahanis submits an affidavit dated March 18, 2013, stating that the documents which constitute written memoranda of the agreements define the scope of the work which Doric was responsible to perform. Trahanis states that all work required by the contracts were properly performed but that [*4]they could not finalize the work until the kitchen countertop and cabinets, which the plaintiff was purchasing herself, had been installed. Further, defendant states that the plaintiff modified the size and scope of the work after the kitchen cabinets and countertop were installed and that the cabinet and countertop installers caused damage to the kitchen. Trahanis states that plaintiff failed to pay for extra work and change orders and that he stopped work until the balance of $7,000 was paid. Further, in his affidavit the defendant disputes that many of the items of work claimed by plaintiff to have not been completed were in fact completed. Trahanis states that in view of the disputes as to what work was done and the reasons for the failure to complete some of the work, there are questions of fact as to the credibility of each side which require determination by the trier of fact.

With respect to the cross-motion, Trahanis states that the action against him personally must be dismissed as the plaintiff contracted with Doric Construction and not with Michael Trahanis and therefore there was no privity of contract with Trahanis individually. Defendant states that the first written proposal was made by the corporation and he signed as an authorized officer. He states that a proposal for additional work for the kitchen was never executed by either party but that the Corporation performed the work and payments were all made to the Corporation. Defendant contends, therefore, that the complaint should be dismissed against Michael TRahanis who acted solely as an authorized officer of Doric Construction.

Upon review and consideration of the plaintiff's motion for summary judgment, the defendants' opposition and cross-motion to dismiss and the plaintiff's reply thereto, this court finds as follows:

The defendants' cross-motion for an order dismissing the action against Michael Trahanis individually is denied. Although the first proposal regarding repairs for fire damage was signed by Doric Construction there is no writing signed by either party evidencing the work to be performed relative to the kitchen remodeling and by whom the work was to be performed. Therefore, there is a question as to whether the oral contract was with Doric Construction Corp or with defendant Trahanis individually. Moreover, the plaintiff has submitted evidence of a check in the amount of $1500.00 which she made payable to Michael Trahanis individually for work to be performed as part of the contract.

With respect to plaintiff's motion for partial summary judgment on her causes of action for breach of contract, this [*5]court finds that the proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).

Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability against defendants by providing evidence of the terms of the agreement, the consideration, the plaintiff's payment of the contract price, as well as her affidavit and the affidavit of contractor Adrien Pera stating that the defendants failed to perform the work pursuant to the agreements and that the work that was done by the defendants on her residence was improperly and incompletely performed (see Nash v Baumblit Constr. Corp., 72 AD3d 1037 [2d Dept. 2010]).

However, in opposition to the motion defendant Trahanis submits an affidavit which raises several material questions of fact as to which agreements and proposals were the applicable documents. In this regard it should be noted that the plaintiff did not sign any of the documents submitted. In addition, the only contract concerning the kitchen work was admittedly an oral contract and the document allegedly reducing the kitchen remodeling contract to writing was not signed by either party. Therefore, there are questions of fact as to the exact work that was contracted for and what changes and modifications were made to the contracts during the course of the project. Moreover, the defendant has disputed the plaintiff's allegations as to what work, if any, was improperly performed, and what work was completely or not completely performed and who, as between Doric and the cabinet and countertop installers actually caused damage to the plaintiff's residence. Thus, there are questions of fact regarding whether the defendants breached the contract which must be resolved by the trier of fact. In this regard the conflicting affidavits of the parties create issues of credibility that are not properly determined on a motion for summary judgment and require resolution by the trier of fact (see Cerniglia v Loza Rest. Corp., 98 AD3d 933 [2d Dept. 2012]; Martinez v Martinez, 93 AD3d 767 [2d Dept. 2012]).

Accordingly, for all of the above stated reasons the plaintiff's motion for partial summary judgment on the causes of action for breach of contract are denied.

Dated: August 28, 2013

Long Island City, NY

______________________________

ROBERT J. MCDONALD, J.S.C.