Preview
FILED: KINGS COUNTY CLERK 07/23/2020 11:26 PM INDEX NO. 514358/2019
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 07/23/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS Index No.: 514358/2019
----------- ------------------------------------------
X
TRIBORO CONTRACTORS SUPPLY,
Plaintiff, : AFFIDAVIT IN
: OPPOSITION TO
-against- : SUMMARY JUDGMENT
SDS LEONARD, LLC., :
Defendant.
_______ ---------
X
State of New York )
)ss:
County of Kings )
LOUIS GRECO, being duly sworn, deposes and says as follows:
1. I am the principal officer of SDS LEONARD, LLC, the Defendant in this action, and as
such have knowledge of the facts and circumstances set forth below. The basis for my
knowledge is the reviesv of the records of Defendant and the exhibits annexed hereto.
2. I make this affidavit in opposition to Plaintiff's motion for summary judgment as genuine
triable issues of fact exist and the parties must proceed to discovery and trial.
3. The instant action involves a claim by Plaintiff for materials for use in construction at a
property located at 232 Smith Street, Brooklyn, New York. 232 Smith Street, Brooklyn,
New York is owned by 232 Smith Street LLC.
4. Back in 2018, Defendant SDS Leonard, LLC was managing a construction project at the
property located at 232 Smith Street, Brooklyn, New York for the landlord 232 Smith
Street LLC.
5. In connection with their duties as manager at the construction project, SDS Leonard, LLC
acted as agent to the landlord of the property.
1 of 4
FILED: KINGS COUNTY CLERK 07/23/2020 11:26 PM INDEX NO. 514358/2019
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 07/23/2020
6. In itscapacity as agent for 232 Smith Street LLC, SDS Leonard, LLC applied for credit
from Triboro Contractors Supply. EXHIBIT A.
7. When SDS Leonard, LLC requested a credit application, which was proffered by
Plaintiff, allparties understood the credit application agrccment was for the limited
purpose of the project at 232 Smith Street, Brooklyn, New York and was being made on
behalf of the property owner, 232 Smith Street LLC.
8. SDS Leonard, LLC has other suppliers which ituses for itsother projects, but 232 Smith
Street LLC wanted to use Triboro Contractors Supply, so an application was made on its
behalf. SDS Leonard, LLC did not use Triboro Contractors Supply for any other project.
9. Further, the application was to open an account only and did not create any present
obligation by any c0mpany. There was no consideration for the credit application, and we
were never charged an application fee. The application was only to see ifTriboro
Contractors Supply would be willing to do business with us in the future. As such, I am
advised by counsel that itis not a binding contract for lack of consideration.
10. Following the opening of the account, Triboro delivered some supplies. Triboro has
claimed that they issued eleven invoices to SDS Leonard, LLC between September 2018
and November 2018, a four-month period. EXHIBIT B.
11. The total for the eleven invoices is $23,710.76. Plaintiff provided a statement showing a
summary of these charges. EXHIBIT C.
12. Yet, on February 19, 2019, approximately 3 months after the last invoice, Plaintiff sent a
letter through counsel claiming the amount due was $24,710.76. EXHIBIT D.
13. Plaintiff also proceeded to filetwo mechanic's liens.
2
2 of 4
FILED: KINGS COUNTY CLERK 07/23/2020 11:26 PM INDEX NO. 514358/2019
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 07/23/2020
14. One mechanic's lien was filed against 232 Smith Street LLC's property, and specifically
names 232 Smith Street LLC though they were not made a party to this action. EXHIBIT
!
E. This lien was for $21,415.33.
17th
15. Another lien was filed against 160 Street, Brooklyn, New York which is owned by
17th 17th
160 St. LLC. This mechanic's lien was filed against 160 St. LLC., though they
were not made a party to thisaction. EXHIBIT F. This lien was for $4,295.43.
16. The totalof the liens is $25,710.76.
17th
17. Notably, the lienagainst 160 St. LLC's seems to be for the delivery of salt for the
project at 232 Smith Street, Brooklyn, New York. EXHIBT G. The invoice at EXHIBIT
17th
G isthe only one with a delivery address at Avenue and not Smith Street.
18. At the time of delivery, the salt was needed for 232 Smith Street and was ordered for that
17th
address. However, there was limited space to store it,and the property at 160 Street
was nice enough to allow us to have the delivery made there.
19. The delivery was signed for by Adam Gottfried, the assistant construction superintendent
for the 232 Smith Street project. EXHIBIT H. He also signed delivery for the other
supplies delivered by Tribro Contractors Supply. See EXHIBIT B to the moving papers.
17th
20. The only delivery by Triboro Contractors Supply to 160 St. LLC's property was the
order of salt. I am advised that is not something for which a mechanic's lien can be filed
and the lien appears to be completely improper and an abuse of the lien laws by the
Plaintiff.Further, the invoice for the salt was $3,295.43 and Plaintiff exaggerated itby
$1,000.00 by placing a lien for $4,295.43. EXHIBIT F.
21.Now, Plaintiff claims that he isowed $34,272.44 in his complaint filed June 2019.
EXHIBIT C to the moving papers. While he seems to include some interest, itis entirely
3
3 of 4
FILED: KINGS COUNTY CLERK 07/23/2020 11:26 PM INDEX NO. 514358/2019
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 07/23/2020
unclear how this number was calculated since in hiscomplaint he seeks $34,272.44 plus
interest from January 14, 2019, the date of breach.
22. In summary, Plaintiff has sent letter,invoices, mechanic's liens and a summons and
complaint claiming to be owed, at various times, $23,710.76, or $24,710.76, or
$25,710.76, or $34,272.44.
23. Novv, Plaintiff claims to have made an account stated for a specific amount. This cannot
be.
24. Plaintiff sent these invoices into collection within three months after the last one was
issued. This was at a time when we were having issues with the construction and were
not able to review allthe invoices. This does not constitute an account stated.
25. Additionally, Defendant should not bear the burden of any judgment. As stated above,
Defendant was the agent for the property owners. Plaintiff is aware of the property
owner's obligation in this matter and named them in his mechanic's lien filings.Yet, he
leftthese necessary parties out of the complaint in thisaction.
WHEREFORE, I respectfully request thisCourt to deny Plaintiff's motion for summary
judgment.
Louis Greco
Sworn or affirmed to before me this
23M
h
day of June, 2020.
Public
O C-
Notary
GREGORY D. ATKINS
Notary Public, State of New York
Reg. No. 01AT6003663
QuaiNied in Suffolk County Filed in Kings County
CommissionExpires 04/28/2022
4
4 of 4
Preview
FILED: KINGS COUNTY CLERK 07/23/2020 11:26 PM INDEX NO. 514358/2019 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 07/23/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Index No.: 514358/2019 ----------- ------------------------------------------ X TRIBORO CONTRACTORS SUPPLY, Plaintiff, : AFFIDAVIT IN : OPPOSITION TO -against- : SUMMARY JUDGMENT SDS LEONARD, LLC., : Defendant. _______ --------- X State of New York ) )ss: County of Kings ) LOUIS GRECO, being duly sworn, deposes and says as follows: 1. I am the principal officer of SDS LEONARD, LLC, the Defendant in this action, and as such have knowledge of the facts and circumstances set forth below. The basis for my knowledge is the reviesv of the records of Defendant and the exhibits annexed hereto. 2. I make this affidavit in opposition to Plaintiff's motion for summary judgment as genuine triable issues of fact exist and the parties must proceed to discovery and trial. 3. The instant action involves a claim by Plaintiff for materials for use in construction at a property located at 232 Smith Street, Brooklyn, New York. 232 Smith Street, Brooklyn, New York is owned by 232 Smith Street LLC. 4. Back in 2018, Defendant SDS Leonard, LLC was managing a construction project at the property located at 232 Smith Street, Brooklyn, New York for the landlord 232 Smith Street LLC. 5. In connection with their duties as manager at the construction project, SDS Leonard, LLC acted as agent to the landlord of the property. 1 of 4 FILED: KINGS COUNTY CLERK 07/23/2020 11:26 PM INDEX NO. 514358/2019 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 07/23/2020 6. In itscapacity as agent for 232 Smith Street LLC, SDS Leonard, LLC applied for credit from Triboro Contractors Supply. EXHIBIT A. 7. When SDS Leonard, LLC requested a credit application, which was proffered by Plaintiff, allparties understood the credit application agrccment was for the limited purpose of the project at 232 Smith Street, Brooklyn, New York and was being made on behalf of the property owner, 232 Smith Street LLC. 8. SDS Leonard, LLC has other suppliers which ituses for itsother projects, but 232 Smith Street LLC wanted to use Triboro Contractors Supply, so an application was made on its behalf. SDS Leonard, LLC did not use Triboro Contractors Supply for any other project. 9. Further, the application was to open an account only and did not create any present obligation by any c0mpany. There was no consideration for the credit application, and we were never charged an application fee. The application was only to see ifTriboro Contractors Supply would be willing to do business with us in the future. As such, I am advised by counsel that itis not a binding contract for lack of consideration. 10. Following the opening of the account, Triboro delivered some supplies. Triboro has claimed that they issued eleven invoices to SDS Leonard, LLC between September 2018 and November 2018, a four-month period. EXHIBIT B. 11. The total for the eleven invoices is $23,710.76. Plaintiff provided a statement showing a summary of these charges. EXHIBIT C. 12. Yet, on February 19, 2019, approximately 3 months after the last invoice, Plaintiff sent a letter through counsel claiming the amount due was $24,710.76. EXHIBIT D. 13. Plaintiff also proceeded to filetwo mechanic's liens. 2 2 of 4 FILED: KINGS COUNTY CLERK 07/23/2020 11:26 PM INDEX NO. 514358/2019 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 07/23/2020 14. One mechanic's lien was filed against 232 Smith Street LLC's property, and specifically names 232 Smith Street LLC though they were not made a party to this action. EXHIBIT ! E. This lien was for $21,415.33. 17th 15. Another lien was filed against 160 Street, Brooklyn, New York which is owned by 17th 17th 160 St. LLC. This mechanic's lien was filed against 160 St. LLC., though they were not made a party to thisaction. EXHIBIT F. This lien was for $4,295.43. 16. The totalof the liens is $25,710.76. 17th 17. Notably, the lienagainst 160 St. LLC's seems to be for the delivery of salt for the project at 232 Smith Street, Brooklyn, New York. EXHIBT G. The invoice at EXHIBIT 17th G isthe only one with a delivery address at Avenue and not Smith Street. 18. At the time of delivery, the salt was needed for 232 Smith Street and was ordered for that 17th address. However, there was limited space to store it,and the property at 160 Street was nice enough to allow us to have the delivery made there. 19. The delivery was signed for by Adam Gottfried, the assistant construction superintendent for the 232 Smith Street project. EXHIBIT H. He also signed delivery for the other supplies delivered by Tribro Contractors Supply. See EXHIBIT B to the moving papers. 17th 20. The only delivery by Triboro Contractors Supply to 160 St. LLC's property was the order of salt. I am advised that is not something for which a mechanic's lien can be filed and the lien appears to be completely improper and an abuse of the lien laws by the Plaintiff.Further, the invoice for the salt was $3,295.43 and Plaintiff exaggerated itby $1,000.00 by placing a lien for $4,295.43. EXHIBIT F. 21.Now, Plaintiff claims that he isowed $34,272.44 in his complaint filed June 2019. EXHIBIT C to the moving papers. While he seems to include some interest, itis entirely 3 3 of 4 FILED: KINGS COUNTY CLERK 07/23/2020 11:26 PM INDEX NO. 514358/2019 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 07/23/2020 unclear how this number was calculated since in hiscomplaint he seeks $34,272.44 plus interest from January 14, 2019, the date of breach. 22. In summary, Plaintiff has sent letter,invoices, mechanic's liens and a summons and complaint claiming to be owed, at various times, $23,710.76, or $24,710.76, or $25,710.76, or $34,272.44. 23. Novv, Plaintiff claims to have made an account stated for a specific amount. This cannot be. 24. Plaintiff sent these invoices into collection within three months after the last one was issued. This was at a time when we were having issues with the construction and were not able to review allthe invoices. This does not constitute an account stated. 25. Additionally, Defendant should not bear the burden of any judgment. As stated above, Defendant was the agent for the property owners. Plaintiff is aware of the property owner's obligation in this matter and named them in his mechanic's lien filings.Yet, he leftthese necessary parties out of the complaint in thisaction. WHEREFORE, I respectfully request thisCourt to deny Plaintiff's motion for summary judgment. Louis Greco Sworn or affirmed to before me this 23M h day of June, 2020. Public O C- Notary GREGORY D. ATKINS Notary Public, State of New York Reg. No. 01AT6003663 QuaiNied in Suffolk County Filed in Kings County CommissionExpires 04/28/2022 4 4 of 4