I. Statement Pursuant to CPLR § 2219

Pursuant to CPLR 2219 [a], the Court considered the following papers upon the motions: Notice of Motion by Defendants Lighting Design Associates, Inc. and John DeAmicis (Motion Sequence 002), together with the Affirmation in Support and annexed Exhibits (NY St Cts Filing [NYSCEF] Doc Nos. 32 through 49); Notice of Cross-Motion by Plaintiffs Joseph Romagnolo and Alexandra Romagnolo (Motion Sequence 003), together with the Affirmation in Support and annexed Exhibits (NY St Cts Filing [NYSCEF] Doc Nos. 51 through 56); Defendants' [*2]Affirmation in Opposition to Plaintiffs' Motion and Defendants' Reply Affirmation, together with Exhibits (NY St Cts Filing [NYSCEF] Doc Nos. 59 through 62); and Plaintiffs' Reply Affirmation (NY St Cts Filing [NYSCEF] Doc No. 63).

Upon due deliberation of the foregoing, and for the reasons set forth below, the Court determines that both motions are DENIED.

II. Factual and Procedural Background

This action concerns defendants' alleged provision of lighting design services and the supply of lighting fixtures for plaintiffs' newly constructed residence at 55 Leonello Lane, Staten Island, New York. Joseph Romagnolo contends that he sought a bright, well-lit house with no dark areas and no scalloping. Plaintiffs engaged defendants, who provided multiple lighting layouts and fixture specifications.

John DeAmicis testified that he prepared layouts for recessed lighting, cove lighting, stairways, fireplaces, basements, and dining rooms. He testified in his affidavit that "Lighting Design recommends and sources light fixtures tailored to clients' preferences and budgets. Lighting Design also liaises with manufacturers to source custom lighting solutions for clients when requested and as needed." (NY St Cts Filing [NYSCEF] Doc No. 33 at page 1, ¶5).

In his EBT, DeAmicis testified that Lighting Design Associates, Inc. is a commercial and residential lighting distributor that does layouts for fees and occasionally does them as a courtesy to clients. (NY St Cts Filing [NYSCEF] Doc No. 55 Page 7, line 25 to page 8, line 5). Lighting Design further does lighting design for a charge and provides the materials. (see id at page 8, lines 6-10).

DeAmicis testified that he has over thirty years of experience in the field (see id at lines 14-15) and makes suggestions on fixtures (see id at lines 11-13). He testified that Lighting Design staff occasionally produce computer generated plans for fixture layouts and Lighting Design produced a number of layouts and several revisions through changes that were requested by the Plaintiffs. (see id at page 11, lines 12-22).

DeAmicis was further questioned:

Q. What do you actually do for Lighting Design Associates?

A. I sell and suggest.

Q. What do you suggest?

A. What I feel is appropriate, give the client choices.

Q. Those suggestions are based on what?

A. Performance, budgets. A variety of things. The style that we work with either in conjunction with the designer or end user. (see id at page 13, lines 13-22).

Q. Are you not a specialist in residential lighting?

A. I am a lighting specialist. It's not limited to residential.

Q. I understand, but does it include residential?

A. sure.

Q. So you do hold yourself out to be a specialist in residential lighting?

A. Yes. (see id at page 15, lines 9-18).

Q. Did you have a software or program which tells you light output and the amount of light that should be in different parts of the home?

A. Yes, we do. (see id at page 16 line 24 to page 17, line 3).

Q. Did you ask for floor plans?

A. Yes.

Q. Were they provided?

A. In one format, yes.

Q. Did you put that into your software?

A. It had to be rebuilt to go into the software.

Q. But it was put into your software, correct?

A. Correct.

Q. The software, does the program have a name?

A. AGI32.

Q. What does the AGI32 do?

A. Basically, it gives you readings of lighting fixtures, the levels based on ceiling heights and spacing on the floor or to the measure on residential usually at about at floor level or — I don't know what it is set for, but work plane height which is 30 inches.

Q. You performed this on the home at Leonello Lane; is that correct?

A. We did the one with our suggestion which we did — that's all I will say. (see id at page 17 line 13 to page 18, line 12).

Q. When you suggested these three different fixtures, what was your suggestion based on?

A. My suggestion was based on three options in terms of what would be provided to do the job. The first one wou14 have allowed a little bit more flexibility. It definitely had greater light output. The next one is a residential architectural fixture that was a little bit more cost effective and had slightly less light output.

Q. When you say slightly less light output, what do you mean by that?

A. Well, within 10 percent. (see id at page 22, line 18 to page 23, line 5).

Q. [D]id Mr. Romagnolo ever express concern to you or that he did not like the light output from the high hats?

A. At the tail end of the project, yes.

Q. When you say tail end of the project, at what point in the construction was that?

A. I believe after the tiling and the painting was done, I believe that's when it took place.

Q. Do you remember a conversation taking place in the basement about the light output of the high hats?

A. We did not do the layout on the basement.

Q. Do you remember a conversation about the light output of the high hats in the basement?

A. Yes.

Q. Do you recall telling Mr. Romagnolo that it's not a true output or reading because the floors were not done yet and walls weren't painted yet?

A. Yes, every finish has an impact on the light level.

Q. Okay. Do you recall the conversation of you telling Mr. Romagnolo that the light output is not true because the tile was not done, the walls were not painted, it was not a finished home yet?

A. Correct.

Q. After the tile was put down do you recall a second conversation that Mr. Romagnolo was not happy with the light output?

A. Yes. (see id at page 29, line 10 to page 30, line 15).

Q. Do you recall telling Mr. Romagnolo about the light output in the basement that he has to wait for the walls to be painted and trim kits to be put in?

A. Yes. (see id at page 31, lines 18-22).

Q. With respect to the first floor, the kitchen floor and family room do you recall having a conversation with Mr. Romagnolo about him not being happy with the light output from the high hats?

A. Yes.

Q. Do you recall telling him that he had to wait until the tile was down and the walls were painted and the trim kits were in to get a true reading of the light output?

A. Yes. (see id at page 34, lines 3-12).

Q. With regard to the second floor, the hallway and the bedrooms, do you recall having a conversation with Mr. Romagnolo about him not being happy with light output from the high hats?

A. Yes. (see id at page 35, lines 3-7).

Q. Do you recall having a conversation about one of his son's bedrooms, about not being happy with the high hats output?

A. Yes (see id at page 36, lines 4-7).

Q. Do you recall standing outside that bedroom with a device that measures light?

A. Yes.

Q. Do you remember taking that light measurement?

A. Yes, and it was very low because of the way it was installed. (see id at page 37, line 24 to page 38, line 6).

Q. At some point did Mr. Romagnolo ask you if all of these light output issues can be fixed?

A. Yes.

Q. Did you give him options that you could fix them?

A. Yes.

Q. What were those options?

A. On the second-floor corridor, completed the design and used the wall sconces that were chosen that were not used. In the bedroom that we have discussed, it was that the ceiling was to go to nine foot flat and the fixtures would have worked. (see id at page 39, lines 12-23).

DeAmicis testified regarding the custom fixture for the powder room ceiling. DeAmicis testified that he was provided with the measurements for the space the fixture was to be installed and had no recollection of taking any measurements himself. (see id at page 50, line 19 to page 51, line 23).

Q. What happened when it [the custom fixture] was tried to be installed?

A. You didn't want to put the support lip around the edge.

Q. No, that was a fix. Isn't it true that the fixture did not fit in the opening?

A. It was 3/4 of an inch shallow for the lip to hold it up. (see id at page 51, lines 3-10).

In connection with a custom powder room fixture, DeAmicis testified that Plaintiffs left the fixture at Lighting Design Associates' premises. (see id at page 52, lines 11-19). DeAmicis clarified that a layout is the placing of fixtures where they should go. (see id at page 13, lines 10-12).

DeAmicis affidavit contradicts his testimony contending "Lighting Design's involvement with the Romagnolo Residence was limited to facilitating the purchase of light fixtures based on discussions with the Romagnolos, their interior designer Jenna DeCiccio, and their electrician John Stassi, among others." (NY St Cts Filing [NYSCEF] Doc No. 33 at ¶10). He further maintains,

Lighting Design's role was, again, limited to sourcing lighting fixtures and providing recommendations based on the Romagnolos' stated preferences and budget. The Romagnolos' alleged dissatisfaction stems from their own design changes, rejection of higher performance options, and third-party errors, none of which are attributable to Lighting Design. At no point did I misrepresent any information to the Romagnolos, nor did I withhold any material facts from them. All suggestions, options, and limitations were fully communicated in good faith and with transparency to ensure they could make informed decisions regarding their lighting choices. (see id at ¶25).

DeAmicis futher contends in his affidavit that it was "[a]fter the installation of the light fixtures, the Romagnolos began to raise concerns regarding perceived issues with the lighting." (see id at ¶18). Defendants' affidavit submissions materially conflict with the sworn deposition testimony on several key points, raising issues of fact that cannot be resolved on motion practice.

III. Legal Standard

Summary judgment is appropriate only where the movant establishes entitlement to judgment as a matter of law, tendering proof sufficient to eliminate all material issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]; Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). The Court must view the evidence in the light most favorable to the non-moving party.

IV. Conclusions of Law

A. Breach of Contract

The Plaintiffs allege that Defendants undertook contractual obligations extending beyond the mere sale of lighting fixtures to include the provision of professional lighting design services. The deposition testimony of John DeAmicis unequivocally reflects that Defendants prepared customized lighting layouts for recessed lighting, cove lighting, and other significant areas of the residence (NY St Cts Filing [NYSCEF] Doc No. 55 pages 83—91), thereby evidencing services of a professional nature.

Conversely, defendants seek to characterize their role as purely transactional, limited to product procurement, as asserted in DeAmicis' post-deposition affidavit (NY St Cts Filing [NYSCEF] Doc No. 33 ¶¶18—25). The material inconsistencies between the deposition testimony and affidavit, particularly concerning the scope and nature of services rendered, are patent. It is well settled that factual discrepancies of this magnitude preclude summary adjudication (Phillips v. Bronx Lebanon Hosp., 268 AD2d 318 [1st Dept 2000]) While issues of fact and credibility may not ordinarily be determined on a motion for summary judgment, where, as here, the self-serving affidavits submitted by Defendant clearly contradict Defendant's own deposition testimony and can only be considered to have been tailored to avoid the consequences of his [*3]earlier testimony, they raise a triable issue of fact to defeat defendant's motion for summary judgment. The existence, scope, and breach of an enforceable agreement remain triable issues of fact. Thus, neither party has established entitlement to judgment as a matter of law on the breach of contract claim.

Summary judgment on the breach of contract cause of action is DENIED.

B. Negligence

A party who voluntarily assumes to render services is bound to exercise due care in their performance (Sommer v. Federal Signal Corp., 79 NY2d 540, 551 [1992]). Here, the evidence adduced demonstrates that Defendants assumed a duty of care by undertaking the design of a comprehensive residential lighting plan (DeAmicis Deposition, pp. 83—91). Plaintiffs have identified specific alleged breaches, including the improper specification of lighting fixtures leading to inadequate illumination, shadowing, and scalloping effects, contrary to the aesthetic and functional requirements expressed by Joseph Romagnolo.

Defendants' assertions that plaintiffs selected inferior fixtures for cost reasons (NY St Cts Filing [NYSCEF] Doc No. 55, page 70, lines 20—25) may serve to mitigate liability but do not negate the existence of a triable question of breach or causation.

Accordingly, the issues of whether Defendants breached their duty and whether such breach proximately caused Plaintiffs' damages must be resolved at trial.

Summary judgment on the negligence cause of action is DENIED.

C. Fraud

To prevail on a claim for fraud, a plaintiff must establish: (1) a material misrepresentation of a fact; (2) known to be false; (3) made with the intent to induce reliance; (4) actual reliance; and (5) resulting damages (Lama Holding Co. v. Smith Barney Inc., 88 NY2d 413, 421 [1996]). Joseph Romagnolo testified that defendants assured him the lighting would be sufficient, offering an express personal guarantee (NY St Cts Filing [NYSCEF] Doc No. 52 at ¶32; NY St Cts Filing [NYSCEF] Doc No. 46 page 8, lines 6-21; page 10, lines 11-19; page 12, lines 9-24). However, John DeAmicis' subsequent affidavit seeks to reposition these statements as general recommendations, disclaiming any specific guarantees. (NY St Cts Filing [NYSCEF] Doc No. 33 at ¶24).

This divergence in the factual record, coupled with disputes concerning the plaintiffs' reliance and the alleged causal relationship to plaintiffs' claimed injuries, raise classic questions of fact unsuitable for resolution on summary judgment. As New York courts have consistently held, where intent, knowledge, and reliance are at issue, summary judgment must be denied (Sokolow, Dunaud, Mercadier & Carreras LLP v. Lacher, 299 AD2d 64 [1st Dept 2002]).

Summary judgment on the fraud cause of action is DENIED.

D. Conversion

Conversion is established where a plaintiff possesses a right to property and the defendant exercises unauthorized dominion over it in defiance of that right (Thyroff v Nationwide Mut. Ins. Co., 8 NY3d 283, 288—289 [2007]). John DeAmicis testified that Plaintiffs [*4]delivered a custom powder room fixture to Lighting Design Associates' premises after deeming it unsuitable (NY St Cts Filing [NYSCEF] Doc No. 55 page, 53, lines 9—20). The ultimate handling of this fixture, and whether Defendants wrongfully asserted control inconsistent with Plaintiffs' ownership rights, remains disputed. The factual dispute concerning the abandonment, acceptance, or wrongful retention of the fixture renders summary judgment inappropriate at this stage.

Summary judgment on the conversion cause of action is DENIED.

E. General Business Law § 349

General Business Law § 349 proscribes deceptive acts or practices in the conduct of any business or the furnishing of services in New York. To prevail, a plaintiff must demonstrate that: (1) the challenged act or practice was consumer-oriented; (2) it was materially misleading; and (3) it caused injury (Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, N.A., 85 NY2d 20, 25 [1995]).

Plaintiffs contend that Defendants held themselves out to the public as expert lighting designers capable of providing specialized residential services (NY St Cts Filing [NYSCEF] Doc No.46 page 8, lines 6-21). Defendants' marketing and assurances arguably went beyond individualized representations and implicated broader consumer-facing conduct, although whether such representations satisfy the consumer orientation element of GBL § 349 is a factual question. As to material deception, Plaintiffs allege that Defendants misrepresented their design expertise and the efficacy of the recommended lighting fixtures, which plaintiffs assert induced them to enter into the transaction and to expend significant sums based upon those assurances. Plaintiffs claim injury in the form of economic damages, including expenditures on inadequate lighting systems and additional costs for corrective measures.

In light of these factual disputes concerning the consumer-oriented nature of Defendants' conduct, the materiality of the alleged misrepresentations, and the proximate causation of damages, and summary judgment must be denied.

Summary judgment on the General Business Law § 349 cause of action is DENIED.

V. Conclusion

Material factual disputes permeate the record concerning the scope of Defendants' services, the nature of the parties' relationship, the alleged misrepresentations, and the handling of Plaintiffs' property.

Moreover, inconsistencies between John DeAmicis' sworn deposition testimony and his subsequent affidavit further raise triable issues of fact that preclude the granting of summary judgment. These matters must be resolved at trial and are not susceptible to resolution as a matter of law.

VI. Decretal Paragraphs

Accordingly, it is

ORDERED that Defendants' motion for summary judgment (Motion Sequence 002) is DENIED in its entirety; and it is further,

ORDERED that Plaintiffs' cross-motion for summary judgment (Motion Sequence 003) is DENIED in its entirety; and it is further,

ORDERED that all claims and defenses shall proceed to trial; and it is further

ORDERED that the parties shall appear for a settlement conference before this Court on June 9, 2025, at 9:30 AM; and it is further,

ORDERED that not less than five (5) days prior to the scheduled conference, each party shall submit to Chambers, a confidential statement of proposed disposition, outlining the party's settlement position in concise and non-argumentative terms; and it is further,

ORDERED that statements of proposed disposition shall not be filed with the County Clerk or on NYSCEF, and shall be for in camera review only; and it is further,

ORDERED that the parties shall appear for the settlement conference with full settlement authority, or with principals present, unless otherwise excused by the Court; and it is further,

ORDERED that, in the event the matter is not resolved at the settlement conference, the case shall forthwith be scheduled for dispatch to the jury selection part for trial; and it is further,

ORDERED that any additional relief requested but not specifically granted herein is DENIED.