J.B. Custom
Masonry & Concrete, Inc., Plaintiff,
against
Kim Sutera, Defendant.
|
19925/2011
Robert J. McDonald, J.
The following papers numbered 1 to 8 read on this motion by defendant for an order
adopting and confirming in whole the Findings of Fact and Conclusions of Law of the
Decision and Order dated March 23, 2015 of the New York City Department of
Consumer Affairs (DCA); pursuant to CPLR 3212(b) granting summary judgment to
defendant on each of her counterclaims as contained in her verified answer, and
awarding defendant a money judgment in the amount of $343,081.44l payable by
plaintiff and New York Construction 69 Co., Inc., jointly and severally, plus statutory
interest from January 2011, along with costs and disbursements of this action; granting
defendant summary judgment on plaintiff's Amended Verified Complaint, dismissing
plaintiff's amended verified complaint; directing the County Clerk of Queens County and
the Office of the Register of the City of New York, Queens County to discharge and
cancel the Notice of Mechanics Lien filed by plaintiff against defendant; and directing
the discharge and cancellation of a certain surety bond in the nature of a bond to [*2]cancel a mechanic's lien issued by Suretec Insurance
Company, under Bond No. 3349830 in the sum of $69,462.25 previously filed by
defendant.[FN1]
Papers Numbered
Notice of Motion-Affirmation-Exhibits.................1 - 4
Affirmation in Opposition-Affidavit...................5 - 6
Reply Affirmation-Exhibits............................7 - 8
By supplemental summons and complaint filed on September 13, 2011,
plaintiff J. B. Custom Masonry & Concrete, Inc., a general contracting company,
alleges that on January 11, 2010, it contracted with defendant Kim Sutera to provide
labor and materials for remodeling and alterations on defendant's home located at 133-01
Rockaway Beach Boulevard, Queens County, New York. The construction contract price
was $377,000.00 of which defendant paid $313,852.50, leaving a balance due of
$63,147.50. Plaintiff claims that it performed all agreed upon work and is entitled to
payment of the agreed upon price. Plaintiff filed a notice of pendency on August 23,
2011 and notice of mechanic's lien in the amount of $63,147.50 on May 19, 2011. The
complaint asserts two causes of action, one for breach of contract for construction and
improvements to defendant's home and the second for foreclosure of the mechanic's lien
filed with the County Clerk of Queens County on May 19, 2011.
Defendant claims that plaintiff performed sub-standard work, and as a result,
defendant terminated plaintiff's services in February 2011 and hired a new general
contractor to repair plaintiff's prior work.
During the pendency of this action, a complaint was filed by defendant
against plaintiff before DCA. A full hearing was conducted before DCA. Plaintiff was
represented by legal counsel, called witnesses on its own behalf, presented evidence, and
was provided an opportunity to cross-examine all of defendant's witnesses as to those
same issues raised in the complaint and counterclaim presently before this Court. DCA
issued a Decision and Order dated March 23, 2015 determining that: (I) plaintiff engaged
in deceptive trade practices in its construction on defendant's home; (ii) plaintiff received
payment from defendant [*3]for services which it
promised to complete and were never performed; (iii) plaintiff materially deviated from
the architect's plans and disregarded the plans and specifications outlined in the parties'
construction contract; (iv) plaintiff failed to perform construction on defendant's home in
a skillful workmanlike and competent manner; and (v) plaintiff abandoned the job. As a
result of the foregoing, DCA revoked the home improvement contractor's license of
plaintiff, imposed fines against plaintiff, and awarded defendant restitution in the amount
of $343,081.44.
Based upon the foregoing, defendant now moves for summary judgment on
plaintiff's complaint and defendant's counterclaims, asking this Court to cancel the
mechanic's lien and surety bond filed against defendant's home, and directing a money
judgement be entered in the amount determined by DCA. Defendant's request for
statutory interest in addition to the restitution amount determined by DCA is denied as
such request was previously denied by DCA.
In opposition, plaintiff submits two attorney affirmations. Plaintiff's counsel
argues that there is no identity of issue between the DCA proceeding and this action, that
the DCA decision is not final, and that DCA exceeded its regulatory authority.
Defendant alleges that she has not received any payments from plaintiff or
New York Construction 69 Co., Inc., and as such, relief under CPLR 3212 is proper to
enforce the restitution order of DCA. While New York Construction 69 Co., Inc. is not a
named party in this action, DCA determined that New York Construction 69, Inc., Co.
was acting as the alter ego to plaintiff, and therefore, is responsible for restitution to
plaintiff.
It is well established that the proponent of a summary judgment motion
"must make a prima facie showing of entitlement to judgment as a matter of law,
tendering sufficient evidence to demonstrate the absence of any material issues of fact"
(Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]. 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 its
position (see Zuckerman v. City of New York, 49 NY2d 557[1980]).
The doctrine of collateral estoppel is applicable to give conclusive effect to
the quasi-judicial determinations of an administrative agency (see Ryan v New York
Telephone Co., 62 NY2d 494 [1984]). Collateral estoppel precludes a party from
[*4]relitigating an issue that was previously raised and
decided in a proceeding where that party had a full and fair opportunity to litigate the
issue of fact or law (see id.). "In the application of collateral estoppel with respect
to administrative determinations, the burden rests upon the proponent of collateral
estoppel to demonstrate the identicality and decisiveness of the issue, while the burden
rests upon the opponent to establish the absence of a full and fair opportunity to litigate
the issue in a prior action or proceeding." (id.).
In this action, defendant counterclaimed for breach of contract, breach of
implied warranties of fitness, skill and workmanlike construction, fraud, and a
declaratory judgment that the lien is void. Defendant has demonstrated that there is
identicality of issues in this action and the DCA action. In opposition, plaintiff
conclusively states that defendant has not set forth the elements of her counterclaims, and
thus, has not demonstrated identicality of issues. Mere conclusions, expressions of hope
or unsubstantiated allegations or assertions are insufficient to defeat a summary judgment
motion (see Zuckerman v. City of New York, 49 NY2d 557[1980]).
Defendant also established a finality of issue. Although plaintiff argues that
it may file an appeal, plaintiff fails to present any documentary evidence in admissible
form asserting such. Plaintiff's counsel ultimately stats that he is unaware whether the
transcript from the DCA proceeding was ordered or whether the matter was stayed.
Pursuant to DCA rules, plaintiff had thirty days from the date of the Decision and Order
to file an appeal or file an application requesting a stay. As such, plaintiff had until April
21, 2015 to appeal the DCA decision. Plaintiff failed to do so. Although New York
Construction 69 Co., Inc. did file an appeal, the sole issue on appeal is whether NY
Construction 69 Co., Inc. is the alter ego or successor in interest of plaintiff.
Accordingly, the underlying merits of the DCA Decision and Order, i.e. whether plaintiff
breached its contract or engaged in unworkmanlike construction in the work upon
defendant's home, is a final decision.
Lastly, defendant failed to assert how DCA exceeded its regulatory
authority. DCA has the authority to adjudicate whether a home improvement contractor
deviated or disregarded plans or specifications as contained in a home improvement
contract, whether the contractor made substantial misrepresentations or false promises
carrying out the terms of a home improvement contract, and whether the contractor failed
to perform work under a home improvement contract in a skillful and competent manner
[*5](see NYC Admin. Code 20-393). Furthermore, DCA
may impose civil penalties, including awarding a homeowner monetary damages and
restitution for the cost of repairs and related expenses (see NYC Admin. Code 20-104,
20-401[3]). Accordingly, DCA had authority to determine whether plaintiff engaged in
unworkmanlike and defective construction of defendant's home and the amount of
damages as a result thereof. Regarding defendant's fraud counterclaim, DCA may
determine whether a contractor committed a fraud against a homeowner, and upon such
determination DCA, can award restitution for the damages sustained by the homeowner
as a result of such fraud (see NYC Admin. Code 20-393[3], 20-396[b]). Lastly, to the
extent that DCA determined that it was plaintiff who failed to perform, abandoned the
job and breached the home improvement contract with defendant, plaintiff's complaint
asserting causes of action for breach of contract and foreclosure of a mechanic's lien
must fail as a contractor who engaged in defective construction cannot recover for breach
of contract, or foreclose on a mechanic's lien which is based upon such defective
construction.
As defendant met her burden regarding finality and identicality of issues,
plaintiff must demonstrate that it did not have a full and fair opportunity to litigate the
issues in the DCA proceeding. Defendant fails to allege any facts in attempt to establish
such burden.
In light of the foregoing, defendant's motion is granted to the extent that it is
hereby
ORDERED, that the Findings of Fact and Conclusions of Law of the New
York City Department of Consumer Affairs, in a Decision and Order bearing case
number CD/DD 500132939, dated March 23, 2015 are adopted and confirmed as to its
findings regarding plaintiff J.B. Custom Masonry & Concrete, Inc. and defendant
Kim Sutera; and it is further
ORDERED, that summary judgment is granted in favor of defendant Kim
Sutera and against plaintiff J.B. Custom Masonry & Concrete, Inc. on defendant's
counterclaims, and defendant Kim Sutera is awarded a money judgment in the amount of
$343,081.44; and it is further
ORDERED, that summary judgment is granted in favor of defendant Kim
Sutera and against plaintiff J.B. Custom Masonry & Concrete, Inc. on plaintiff's
amended verified complaint, and plaintiff's amended verified complaint is dismissed; and
it is further
ORDERED, that the County Clerk of the County of Queens, upon being
served with a certified copy of this order with notice of entry, vacate and cancel the
Notice of Mechanic's Lien filed by plaintiff J.B. Custom Masonry & Concrete, Inc.
as against real property owned by defendant Kim Sutera and located at 133-01 Rockaway
Beach Boulevard, Belle Harbor, New York, Block 16278, Lot 008, and said Clerk is
directed to enter upon the margin of the record a notice of cancellation referring to this
order; and it is further
ORDERED, the County Clerk of the County of Queens, upon being served
with a certified copy of this order with notice of entry, vacate and cancel the Bond To
Cancel A Mechanic's Lien issued by Suretec Insurance Company, under Bond No.
3349830, in the sum of $69,462.25, filed by defendant Kim Sutera, as against the real
property known as 133-01 Rockaway Beach Boulevard, Belle Harbor, New York, Block
16278, Lot 008, and said Clerk is directed to enter upon the margin of the record a notice
of cancellation referring to this order.
Dated: August 17, 2015
Long Island City, NY
______________________________
ROBERT J. MCDONALD
J.S.C.
Footnotes
Footnote 1:This Court did not
consider any relief sought against New York Construction 69 Co., Inc. Defendant
withdrew her branch of her motion seeking relief against New York Construction 69 Co.,
Inc. in her Reply papers. This Court also notes that New York Construction 69 Co., Inc.
is not a party to this action.