Preview
NA hk WV ee NO. 612818/2021
AU OUN
N¥SEEF-BOE—-NO=—- 8 RECEDVE AYSEEF 870772021
DISTRICT COURT OF NASSAU COUNTY
FIRST DISTRICT CIVIL PART 2
a
GLORIAK CORP.,
INDEX NO. CV-017154/19
Plaintiff(s)
Present:
against HON. ROBERT E. PIFIA
M.V.B. COLLISION INC.
D/B/A MID-ISLAND COLLISION,
Defendant(s)
“---X
The following named papers numbered 1 to 3
submitted on this motion on September 21, 2020
papers numbered
———Nbotice
of Motion
Affirmation inOpposition
———Affirmation
in Reply
The plaintiff moves for an order, pursuant to CPLR 3212, directin g the entry
of summary judgment in its favor, in the amount of $10,920.00 with intérest and
attorney's fees in the amount of $6,973.33. The defendant has submitted
opposition. The plaintiff has submitted a reply. The plaintiff's motion is determined
as follows.
In its complaint, the plaintiff sets forth cause of action for breach] of
contract, unjust enrichment and attorney's fees. In its complaint, the plaintiff,
which is an employer fee paid staffing and recruitment firm, alleges that the
defendant requested the plaintiff to provide a temporary office worker. At the time
of the request, the defendant allegedly agreed to pay the plaintiff based upon the
hourly time of that worker and not to directly pay the worker. Based upon this
agreement, the plaintiff sent one of its workers, Sharmista Chanda, to work for
the defendant.
Pursuant to the alleged agreement, the defendant signed two (2) time
sheets for the hours worked by Ms. Chanda, which were provided by the plaintiff.
The first time sheet is for the date of November 30, 2018 for 8.5 hours worked
and the second time sheet is for the dates of December3, 2018 and December 4,
2018 for 8.5 hours worked on each date.
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INDEX NO. CV-07154/19
Each of the time sheets, which are virtually identical, have a top and
bottom portion. The top portion which is entitled “CLIENT TERMS AN
CONDITIONS" provides, in relevant part, that:
“In consideration of your having furnished the Satisfactory services of
the temporary employee (temp) named below, we agree that if within
the next 365 days we...employ or contract this or any future temps
assigned to us by you...a contractual placement fee shall
immediately become due to you computed by the standard rate of
1% per each $1,000, to a maximum of 30% of the starting
annualized wage (the regular starting weekly wage x 52 weeks) baid
to or for such person. Such fee payable to you shall not be less that
$2,500. We may not avoid payment of any temporary labor bill
because of any premature termination by the temp billed.
If we fail to pay the sums due to GLORIA K and our delinquent
account is given to an attorney for litigation or collection, we shall
also pay GLORIA K's attorney his fees at the attorney's regular
billing rate up to the principal amount due to GLORIA K.”
The bottom portion of the time sheet has sections for the client’s
information and the temp/employee’s information, as well as the hours worked.
This bottom section also has lines for the signatures of the temp/employee, as
well as, the authorized officer of the client.
In its complaint, the plaintiff further alleges that the defendant hired Ms.
Chanda, on or about December 5, 2018, and, therefore, the plaintiff is!owed the
fee from the defendant, as set forth in the Client Terms and Conditions on the top
of the time sheets.
Summary judgment is drastic relief - - it denies one party the opportunity to
go to trial. Thus, summary judgment should only be granted where there are no
triable issues of fact (see Andre v Pomeroy, 35 NY2d 361 [1974]). The focus for
the court is on issue finding, not issue determining (see Hantz v Fishman, 155
AD2d 415 [2d Dept 1989]). The proponent of a summary judgment motion must
make a prima facie showing of entitlement to judgment as a matter ofjlaw,
tendering evidence in admissible form to demonstrate the absence ofjany
material issues of fact. Failure to make such a prima facie showing requires
denial of the motion, regardless of the sufficiency of the opposing papers (see
-2-
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| GLORIAK V. MVB
INDEX NO. CV-07154/19
Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v N.Y. Univ. Med. Ctr.,
64 NY2d 851 [1985]). Once the movant has demonstrated a prima faci showing
of entitlement to judgment, the burden shifts to the party opposing the motion, to
produce evidentiary proof in admissible form sufficient to establish the existence
of material issues of fact which require a trial of the action (see Zuckerman v New
York, 49 NY2d 557 [1980]).
In support of the instant motion, the plaintiff has submitted the affidavit of
Chet Gottshall, the Chief Executive Officer of the plaintiff. In his affidavit, Mr.
Gottshall states that plaintiff assigned its temp, Sharmista Chanda, to defendant
under the “usual arrangement” whereby the defendant signed a time sheet for her
hours, plaintiff paid her salary and then billed the defendant for hours reported.
He further states that the time sheets that the defendant signed had the “usual
terms” that if the defendant hired Ms. Chanda directly, a standard placement fee
of 1% per thousand to a maximum of 30% of her starting salary would be due to
the plaintiff. He also states that the defendant did hire Ms. Chanda direbtly at an
annual salary of $36.400.00, and, therefore, the plaintiff is due a fee of|$10,
920.00.
In opposition, the defendant submitted the affidavit of Brian McGauvan, the
General Manager of the defendant, Mid Island Collision. In his affidavit} Mr.
McGauvan states that he engaged the plaintiff to provide a temporary worker to
the defendant. He further states that no contract or other agreement was entered
into or presented for his signature at the time plaintiff was engaged or at any
other time. He also states that when Ms, Chanda presented her time sheet, which
he signed, it was folded over and only the time sheet was visible. He further
states that Ms. Chanda concealed any and all language regarding the fee in
question. .
In its reply, the plaintiff argues that Mr. McGauvan’s allegations that the
time sheet was folded over and the language regarding the fee was cancealed by
Ms. Chanda are without factual significance as Mr. McGauvan does not allege
that he wanted to see the entire document, or, that after he requested ito do so,
Ms. Chanda refused to let him see it. In support, the plaintiff relies upan Gillman v
Chase Manhattan Bank, N.A., 135 AD2d 488 [2d Dept 1987], in which|the Court
found that:
“The general rule is that if the signer of an agreement could have
read it in its entirety, to not have read it was gross negligence. If he
3-
INDEX NO. 612818/2021
(FILED: NASSAU COUNTY CLERK 10/07/2021 I1:42 AM
NYSEEF-BO: 10- 2 RECEEVEB HY EF +6767 O21
GLORIAK V. MVB
INDEX NO. CV-07154/19
could not read it, then he should procure someone to read it for him
and to fail to do so is equally negligent. In either case, the agreement
is binding upon him (see, Wallach Agency v. Bank of N. Y., 75 AD2d
878). Therefore, it is incumbent upon the signer of a contract to read
it and his claim that he failed to do so will not generally serve to
invalidate the contract (see also, Leasing Serv. Corp. v. Simpkin.
Metal Bidgs., 638 F Supp 896)
However, in his affidavit, Mr. McGauvan does not simply allege that he did
not read the agreement, but, rather, that he did not know of the existence of an
agreement or that he was entering into one when he signed Ms. Chanda’s time
sheet. As such, the defendant has raised issues of fact that will need to be
determined at trial.
Accordingly, the plaintiff's motion is denied, in all respects
So Ordered
/S| HON ROBERT E. PIPIA
DISTRICT COURT JUDGE
Dated: November 2, 2020
CC. Amos Weinberg
Steven F. Goldstein, LLP
REP:mc
4.
Preview
NA hk WV ee NO. 612818/2021 AU OUN N¥SEEF-BOE—-NO=—- 8 RECEDVE AYSEEF 870772021 DISTRICT COURT OF NASSAU COUNTY FIRST DISTRICT CIVIL PART 2 a GLORIAK CORP., INDEX NO. CV-017154/19 Plaintiff(s) Present: against HON. ROBERT E. PIFIA M.V.B. COLLISION INC. D/B/A MID-ISLAND COLLISION, Defendant(s) “---X The following named papers numbered 1 to 3 submitted on this motion on September 21, 2020 papers numbered ———Nbotice of Motion Affirmation inOpposition ———Affirmation in Reply The plaintiff moves for an order, pursuant to CPLR 3212, directin g the entry of summary judgment in its favor, in the amount of $10,920.00 with intérest and attorney's fees in the amount of $6,973.33. The defendant has submitted opposition. The plaintiff has submitted a reply. The plaintiff's motion is determined as follows. In its complaint, the plaintiff sets forth cause of action for breach] of contract, unjust enrichment and attorney's fees. In its complaint, the plaintiff, which is an employer fee paid staffing and recruitment firm, alleges that the defendant requested the plaintiff to provide a temporary office worker. At the time of the request, the defendant allegedly agreed to pay the plaintiff based upon the hourly time of that worker and not to directly pay the worker. Based upon this agreement, the plaintiff sent one of its workers, Sharmista Chanda, to work for the defendant. Pursuant to the alleged agreement, the defendant signed two (2) time sheets for the hours worked by Ms. Chanda, which were provided by the plaintiff. The first time sheet is for the date of November 30, 2018 for 8.5 hours worked and the second time sheet is for the dates of December3, 2018 and December 4, 2018 for 8.5 hours worked on each date. NA hk WV ) AU OUN NYSCEF BOC. NO. GLORIAK V. MVB INDEX NO. CV-07154/19 Each of the time sheets, which are virtually identical, have a top and bottom portion. The top portion which is entitled “CLIENT TERMS AN CONDITIONS" provides, in relevant part, that: “In consideration of your having furnished the Satisfactory services of the temporary employee (temp) named below, we agree that if within the next 365 days we...employ or contract this or any future temps assigned to us by you...a contractual placement fee shall immediately become due to you computed by the standard rate of 1% per each $1,000, to a maximum of 30% of the starting annualized wage (the regular starting weekly wage x 52 weeks) baid to or for such person. Such fee payable to you shall not be less that $2,500. We may not avoid payment of any temporary labor bill because of any premature termination by the temp billed. If we fail to pay the sums due to GLORIA K and our delinquent account is given to an attorney for litigation or collection, we shall also pay GLORIA K's attorney his fees at the attorney's regular billing rate up to the principal amount due to GLORIA K.” The bottom portion of the time sheet has sections for the client’s information and the temp/employee’s information, as well as the hours worked. This bottom section also has lines for the signatures of the temp/employee, as well as, the authorized officer of the client. In its complaint, the plaintiff further alleges that the defendant hired Ms. Chanda, on or about December 5, 2018, and, therefore, the plaintiff is!owed the fee from the defendant, as set forth in the Client Terms and Conditions on the top of the time sheets. Summary judgment is drastic relief - - it denies one party the opportunity to go to trial. Thus, summary judgment should only be granted where there are no triable issues of fact (see Andre v Pomeroy, 35 NY2d 361 [1974]). The focus for the court is on issue finding, not issue determining (see Hantz v Fishman, 155 AD2d 415 [2d Dept 1989]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter ofjlaw, tendering evidence in admissible form to demonstrate the absence ofjany material issues of fact. Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see -2- NA hk WV INDEX NO. 612818/2021 ) AU OUN NYSCEF BOC. NO. RECEIVED NYSCEE: 10/07/2021 | | | | GLORIAK V. MVB INDEX NO. CV-07154/19 Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v N.Y. Univ. Med. Ctr., 64 NY2d 851 [1985]). Once the movant has demonstrated a prima faci showing of entitlement to judgment, the burden shifts to the party opposing the motion, to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v New York, 49 NY2d 557 [1980]). In support of the instant motion, the plaintiff has submitted the affidavit of Chet Gottshall, the Chief Executive Officer of the plaintiff. In his affidavit, Mr. Gottshall states that plaintiff assigned its temp, Sharmista Chanda, to defendant under the “usual arrangement” whereby the defendant signed a time sheet for her hours, plaintiff paid her salary and then billed the defendant for hours reported. He further states that the time sheets that the defendant signed had the “usual terms” that if the defendant hired Ms. Chanda directly, a standard placement fee of 1% per thousand to a maximum of 30% of her starting salary would be due to the plaintiff. He also states that the defendant did hire Ms. Chanda direbtly at an annual salary of $36.400.00, and, therefore, the plaintiff is due a fee of|$10, 920.00. In opposition, the defendant submitted the affidavit of Brian McGauvan, the General Manager of the defendant, Mid Island Collision. In his affidavit} Mr. McGauvan states that he engaged the plaintiff to provide a temporary worker to the defendant. He further states that no contract or other agreement was entered into or presented for his signature at the time plaintiff was engaged or at any other time. He also states that when Ms, Chanda presented her time sheet, which he signed, it was folded over and only the time sheet was visible. He further states that Ms. Chanda concealed any and all language regarding the fee in question. . In its reply, the plaintiff argues that Mr. McGauvan’s allegations that the time sheet was folded over and the language regarding the fee was cancealed by Ms. Chanda are without factual significance as Mr. McGauvan does not allege that he wanted to see the entire document, or, that after he requested ito do so, Ms. Chanda refused to let him see it. In support, the plaintiff relies upan Gillman v Chase Manhattan Bank, N.A., 135 AD2d 488 [2d Dept 1987], in which|the Court found that: “The general rule is that if the signer of an agreement could have read it in its entirety, to not have read it was gross negligence. If he 3- INDEX NO. 612818/2021 (FILED: NASSAU COUNTY CLERK 10/07/2021 I1:42 AM NYSEEF-BO: 10- 2 RECEEVEB HY EF +6767 O21 GLORIAK V. MVB INDEX NO. CV-07154/19 could not read it, then he should procure someone to read it for him and to fail to do so is equally negligent. In either case, the agreement is binding upon him (see, Wallach Agency v. Bank of N. Y., 75 AD2d 878). Therefore, it is incumbent upon the signer of a contract to read it and his claim that he failed to do so will not generally serve to invalidate the contract (see also, Leasing Serv. Corp. v. Simpkin. Metal Bidgs., 638 F Supp 896) However, in his affidavit, Mr. McGauvan does not simply allege that he did not read the agreement, but, rather, that he did not know of the existence of an agreement or that he was entering into one when he signed Ms. Chanda’s time sheet. As such, the defendant has raised issues of fact that will need to be determined at trial. Accordingly, the plaintiff's motion is denied, in all respects So Ordered /S| HON ROBERT E. PIPIA DISTRICT COURT JUDGE Dated: November 2, 2020 CC. Amos Weinberg Steven F. Goldstein, LLP REP:mc 4.