Preview
FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019
NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
FORM CONTRACTING, INC.,
Index No.: 613715/2019
Plaintiff,
-against-
SUSAN GOLDSTONE and SUSAN GOLDSTONE as
the Executor of the Estate of JEANNE
GOLDSTONE,
Defendants.
MEMORANDUM OF LAW
IN SUPPORT OF DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
AGULNICK KREMIN P.C.
510 Broadhollow Road, Suite 303
Melville, New York 11747
Counsel for Defendants
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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... 3
PRELIMINARY STATEMENT .................................................................................................... 4
BACKGROUND ............................................................................................................................ 6
ARGUMENT .................................................................................................................................. 8
PLAINTIFF’S CLAIMS MUST BE DISMISSED, AND DEFENDANTS’
COUNTERCLAIM FOR BREACH OF CONTRACT GRANTED, AS PLAINTIFF ADMITS
AND CONFIRMS THAT PLAINTIFF BREACHED THE CONTRACT, FAILED TO
COMPLETE THE WORK, AND WAS NOT ENTITLED TO PAYMENT PER THE
AGREEMENT BETWEEN THE PARTIES .............................................................................. 9
A. Plaintiff breached the Contract as a matter of law, requiring dismissing Plaintiff’s First
Cause of Action for Breach, and entitling Defendant to summary judgment on her First
Counterclaim. .......................................................................................................................... 9
B. Defendant is entitled to Summary Judgment on Defendant’s Second Counterclaim for
Fraud in the Inducement ....................................................................................................... 13
C. Plaintiff’s Second Cause of Action for Account Stated must be dismissed, as Plaintiff
conceded that the invoices contain additional interest and charges that were not agreed upon
or part of the Contract terms ................................................................................................. 15
D. Plaintiff’s Third Cause of Action for Unjust Enrichment and Fourth Cause of Action
for Quantum Meruit must be dismissed, as each is duplicative of the Breach of Contract, in
addition to Plaintiff failing to complete the work that is a condition precedent to payment in
the first instance. ................................................................................................................... 17
THE FILING THE LIEN WAS INVALID, IN THAT THE SIGNOR OF THE LIEN WAS
NOT AUTHORIZED AS AN AGENT OF FORM CONTRACTING, REQUIRING
DISMISSAL OF PLAINTIFF’S FIFTH CAUSE OF ACTION AND SUMMARY
JUDGMENT TO DEFENDANT ON DEFENDANT’S COUNTERCLAIM.......................... 17
A. Plaintiff’s Fifth Cause of Action must be dismissed, in that the lien was exaggerated
and filed without authorization or signature from any person with personal knowledge of
any transaction between the parties ...................................................................................... 18
PLAINTIFF EXAGGERATED THE LIEN, CHARGED IMPERMISSIBLE INTEREST NOT
AGREED UPON AND INVOICED FOR WORK NEVER COMPLETED ........................... 22
CONCLUSION ............................................................................................................................. 23
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TABLE OF AUTHORITIES
Cases
Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974) ....................................................... 8
Appel v. Root, 236 N.Y.S.2d 376 (Sup. Ct. Kings Cty), aff’d, 18 A.D.2d 686, 236 N.Y.S.2d 5 (1st
Dep’t 1962), ................................................................................................................................ 8
DiSario v Rynston, 138 AD3d 672, 673 (2d Dep’t 2016) ............................................................. 16
Donadio v. Crouse-Irving Memorial Hospital, Inc., 75 A.D.2d 715, 427 N.Y.S.2d 118 (4th Dep’t
1980) ........................................................................................................................................... 8
Ellis v Gold, 204 A.D.2d 261, 262 (2d Dep’t 1994) ..................................................................... 21
Ihmels v. Kahn, 126 A.D.2d 701, 511 N.Y.S.2d 306 (2d Dep’t 1987) ........................................... 9
Junger v John V. Dinan Assoc., Inc., 164 AD3d 1428, 1430 (2d Dep’t 2018) .............................. 9
Kahn v. City of New York, 37 A.D.2d 520, 321 N.Y.S.2d 791 (1st Dep’t 1971) ............................ 8
KSP Constr., LLC v LV Prop. Two, LLC, 2024 N.Y. App. Div. LEXIS 348, 204 NYS3d 54 (2d
Dep’t 2024) ............................................................................................................................... 21
Pyramid Champlain Co. V R.P. Brosseau & Co., 267 A.D.2d 539, 542 (3d Dep’t 1999) ........... 22
R&B Design Concepts v Wenger Constr. Co., 2016 N.Y. Misc. LEXIS 6709, (Sup Ct, Nassau
County Sep. 6, 2016, No. 601650/15) ...................................................................................... 17
Safety Commercial Corporation v. Show Cars, Inc., 233 N.Y.S.2d 172 (Sup. Ct. Nassau Cty
1962) ........................................................................................................................................... 9
Sheng Sheng Constr., Inc. v Har's Constr., Inc., 39 Misc 3d 1238[A], 1238A, 2013 NY Slip Op
50921[U], (Sup Ct, Queens County 2013)................................................................................ 22
Shields v. Stevens, 55 A.D.2d 1017, 391 N.Y.S.2d 849 (4th Dep’t 1977)....................................... 9
Super v. Abdelazim, 108 A.D.2d 1040, 485 N.Y.S.2d 612 (3rd Dep’t 1985) .................................. 9
Wiener v. Ga-Ro Die Cutting, Inc., 104 A.d.2D 331, 479 N.Y.S.2d 35 (1st Dep’t 1984) .............. 9
Williams v. Lombardini, 38 Misc.2d 146, 238 N.Y.S.2d 63 (Sup. Ct. Broome Cty 1963) ............ 8
Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980) .................................. 9
Statutes
CPLR §3212(b) ............................................................................................................................... 8
Lien Law § 3 ................................................................................................................................. 16
NY Lien L § 41 (2012) ................................................................................................................. 17
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Defendants SUSAN GOLDSTONE and SUSAN GOLDSTONE, as the Executor of the
Estate of JEANNE GOLDSTONE (together “GOLDSTONE”) submit this memorandum of law
in support of their motion pursuant to CPLR § 3212(b) granting Defendant summary
judgment against Plaintiff FORM CONTRACTING, INC., dismissing Plaintiff’s First cause of
action for Breach of Contract, Plaintiff’s Second cause of action for Account Stated, Plaintiff’s
Third cause of action for Unjust Enrichment, Plaintiff’s Fourth cause of action for Quantum
Meruit, and Plaintiff’s Fifth cause of action for Foreclosure on a Mechanic’s Lien; Granting
Defendant’s First Counterclaim for Breach of Contract, Defendant’s Second Counterclaim
for Fraud in the Inducement, Defendant’s Fifth Counterclaim for Lien Law Violations; and
for such other and further relief as this Court deems just, proper, and equitable.
PRELIMINARY STATEMENT
The instant action is an unfortunate attempt by an unscrupulous contractor to take
advantage of and extort unearned money from a Superstorm Sandy victim attempting to complete
renovations to the home following catastrophic damages from the storm. The end result being a
defective, incomplete home, which remains unrepaired and unoccupied, and a lawsuit.
However, FORM CONTRACTING, INC. is the party in breach as a matter of law, who
first fraudulently induced Defendant into entering into the contract by claims of being a licensed
General Contractor, and then undertook to overzealously attempt to extort unearned money from
Defendant without completing the work agreed to, with amounts exaggerated in violation of the
Lien Law as a matter of law, and impermissible interest added on a whim. As the evidence shows,
FORM abandoned the project contracted for at Defendants’ property without completing the work
agreed to, yet demanded payment nonetheless, with a complete disregard for the agreed upon
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payment terms, specifically that payment was not due until the work was completed. FORM
thereafter filed a lien citing numbers that are severely inflated, exaggerated, and even filed by an
individual who was not an agent to Plaintiff with any personal knowledge, rendering the lien a
nullity as a matter of law.
While FORM initiated this action against Defendants, Defendants provide dispositive
evidence disposing of any claims by Plaintiff, requiring dismissal of Plaintiff’s First Cause of
Action for Breach of Contract, Second Cause of Action for Account Stated, Third Cause of
Action for Unjust Enrichment, Fourth Cause of Action for Quantum Meruit, and Fifth Cause of
Action to Foreclose Mechanic’s Lien; and further supporting summary judgment on
Defendants’ First counterclaim for Breach of Contract, Second Cause of Action for Fraud in the
Inducement, and Fifth Counterclaim for Lien Law Violations and damages. Each issue will be
discussed in turn.
THE PLEADINGS
As stated above, Plaintiff’s action consists of five causes of action, including the First
Cause of Action for Breach of Contract, the Second Cause of Action for Account Stated, the Third
Cause of Action for Unjust Enrichment, a Fourth Cause of Action for Quantum Meruit, and the
Fifth Cause of Action to Foreclose a Mechanic’s Lien. See Exhibit A.1 Defendant interposed an
Answer with Counterclaims, asserting a First Counterclaim for Breach of Contract, a Second
Cause of Action for Fraud in the Inducement, a Third Cause of Action for Unjust Enrichment, and
a Fourth Cause of Action for Negligence, and a Fifth Cause of Action for Lien Law Violations.
See Exhibit B.
1
All references to exhibits refer to the exhibits annexed to the accompanying Grodsky Affirmation in further support
of Defendants’ motion for summary judgment.
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BACKGROUND
As is undisputed, GOLDSTONE’s home at 176 E. Waukena Avenue, Oceanside, New
York 11572 (the “Property”) was damaged from 2012 Superstorm Sandy. On or about June 12,
2016, FORM visited the Property, assessed the condition of the home, and discussed the
remodeling and construction services that may be done. See Exhibit B, p. 10, ¶ 6, Goldstone Aff.
¶ 4, 5, see also Grodsky Aff. ¶ 3. this visit and during conversations with GOLDSTONE, FORM
represented themselves as a general contractor licensed, insured, and qualified to enter into a
contract (the “Contract”) for general contracting services at the Property. See Exhibit B, Goldstone
Aff. ¶ 6, see also Grodsky Aff. ¶ 5. In reasonable reliance of FORM’s representations,
GOLDSTONE retained FORM for the repair and restoration of the Property by FORM. Goldstone
Aff. ¶ 7. However, unbeknownst to GOLDSTONE, FORM was unqualified for general
contracting, and only maintained a permit to perform carpentry work. In fact, the Complaint itself
states that the Plaintiff only maintains a “carpenters contractor license”, which there now seems to
be no record of. See Exhibit A ¶ 4, 5.
While FORM represented there was information still to be provided by them to
GOLDSTONE prior to the commencement of work, they began work anyway within two days of
the signed contract and within the three-day statutory right of recission conveniently omitted from
the Contract. See Exhibit D, Goldstone Tr. 119: 25, 120: 2-5.
Soon after FORM began work, it became clear that FORM’s work was unsatisfactory,
defective, insufficient, and deviated from all accepted norms and industry standards, as well as
shoddy and incomplete. The defective work included but is not limited to roofing, support beams,
subflooring, interior stairs, windows and doors, sheetrock, siding, sheathing, waterproofing, land
fill/the use of foul material, retaining wall and placement, bathroom installation, insulation,
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plumbing, electrical, painting and preparation, exterior deck, foundation repairs, flood vents, front
steps, landing, masonry, improper inspection requirements, and more. See Exhibit A ¶ 13; Exhibit
B Page 1 ¶ 5, Page 10 ¶ 12; Goldstone Aff. ¶ 7; and SOMF ¶ 5. FORM further failed to complete
items contracted for without explanation. See Exhibit B, p. 11, ¶ 17-18, p.12 ¶ 19-21, see also
Exhibit C, Sclafani Tr. 274: 16-25, 275: 2-17, 276: 7-25.
Ultimately, FORM repudiated the contract and abandoned the project at the Property and
removed its name from the permit filed with the town. See Exhibit F, see also Goldstone Aff. ¶ 16,
17. As a result, new contractors are necessary to complete, and remediate all of FORM’s shoddy
workmanship. See Exhibit D, Goldstone Tr. 158: 16-18, 161: 17-20. Subsequent to the breakdown
of the contractual relationship via FORM’s breach, FORM filed a mechanic’s lien against the
Property for work not completed, with exaggerated amounts, containing impermissible interest
fabricated by Plaintiff, and signed by an individual without knowledge or even authorization to
action as an agent of Plaintiff, as admitted by Plaintiff, and notwithstanding the fact that Plaintiff
abandoned the job. See Exhibit G.
Most significantly is the fact that Plaintiff effectively admitted that payment was never due,
as the agreement between the parties was that payment would be due when the work was
completed. As is discussed more fully below, Plaintiff admitted that none of the work was actually
completed. See Exhibit C, Sclafani Tr. 276: 7-25. It follows as a matter of law that if completion
of work is a condition precedent to payment, the fact that the roofing and siding was not completed,
the electrical was not completed, the masonry was not completed, the carpentry was not completed,
the demolition was not completed, the plumbing was not completed, and the flooring, paint, doors,
and deck was not completed, all translates into Plaintiff breaching the contract without any
entitlement to payment.
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ARGUMENT
Summary judgment shall be granted if, upon all the papers and proof submitted, the cause
of action shall be established sufficiently to warrant the court as a matter of law to direct judgment
in favor of any party. CPLR § 3212(b).
Summary judgment relieves congested court calendars and eliminates unnecessary expense
to litigants where no material issue of fact is present. Donadio v. Crouse-Irving Memorial Hospital,
Inc., 75 A.D.2d 715, 427 N.Y.S.2d 118 (4th Dep’t 1980); Williams v. Lombardini, 38 Misc.2d 146,
238 N.Y.S.2d 63 (Sup. Ct. Broome Cty 1963). It is favored as a “fruitful remedy” which because
it is particularly useful, should be encouraged. Kahn v. City of New York, 37 A.D.2d 520, 321
N.Y.S.2d 791 (1st Dep’t 1971), aff’d, 30 N.Y.2d 690, 332 N.Y.S.2d 638 (1972).
Where, as here, no issue of material fact is presented to justify a trial, summary judgment
should be exercised “without hesitation”. Appel v. Root, 236 N.Y.S.2d 376 (Sup. Ct. Kings Cty),
aff’d, 18 A.D.2d 686, 236 N.Y.S.2d 5 (1st Dep’t 1962), aff’d, 13 N.Y.2d 748, 241 N.Y.S.2d 870
(1963); Williams, 38 Misc.2d 146, 238 N.Y.S.2d 63. “An unfounded reluctance to employ the
remedy would only serve to swell the trial calendar and thus to deny other litigants the right to
have their claims promptly adjudicated.” Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131
(1974).
A case is ripe for summary judgment if “…upon all the papers and proof submitted, the
cause of action…shall be established sufficiently to warrant the court as a matter of law in directing
judgment in favor of [the moving] party.” CPLR §3212(b). The motion for summary judgment
shall be supported by affidavits and other available proof by a person having personal knowledge
of the facts and it shall show that there is no defense. Id. A Court’s function when determining a
motion for summary judgment is one of issue finding, not issue determination, and only where a
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genuine issue of fact is found to exist should the motion be denied. Super v. Abdelazim, 108 A.D.2d
1040, 485 N.Y.S.2d 612 (3rd Dep’t 1985); Wiener v. Ga-Ro Die Cutting, Inc., 104 A.d.2D 331,
479 N.Y.S.2d 35 (1st Dep’t 1984). Furthermore, it is well-settled law that once the terms of a
contract are clear and no triable issues of fact are raised, summary judgment should be granted.
Safety Commercial Corporation v. Show Cars, Inc., 233 N.Y.S.2d 172 (Sup. Ct. Nassau Cty 1962).
As a result, one who contests the motion for summary judgment must present sufficient
proof to demonstrate the existence of a genuine triable issue of fact. See Zuckerman v. City of New
York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980). The courts in this jurisdiction have consistently
held that allegations amount to no more than unsubstantiated conclusory assertions are not
sufficient to defeat the motion. Ihmels v. Kahn, 126 A.D.2d 701, 511 N.Y.S.2d 306 (2d Dep’t
1987); Shields v. Stevens, 55 A.D.2d 1017, 391 N.Y.S.2d 849 (4th Dep’t 1977). To defeat a motion
for summary judgment, the opposing party must assemble and lay bare its affirmative proof to
demonstrate that genuine triable issues of fact exist. A bona fide triable issue must be established
and reliance upon mere suspicion or surmise is insufficient for this purpose.
PLAINTIFF’S CLAIMS MUST BE DISMISSED, AND DEFENDANTS’ COUNTERCLAIM
FOR BREACH OF CONTRACT GRANTED, AS PLAINTIFF ADMITS AND CONFIRMS
THAT PLAINTIFF BREACHED THE CONTRACT, FAILED TO COMPLETE THE WORK,
AND WAS NOT ENTITLED TO PAYMENT PER THE AGREEMENT BETWEEN THE
PARTIES
A. Plaintiff breached the Contract as a matter of law, requiring dismissing Plaintiff’s
First Cause of Action for Breach, and entitling Defendant to summary judgment on
her First Counterclaim.
In order to establish breach of contract, one must show: “(1) the existence of a contract, (2)
the plaintiff's performance pursuant to the contract, (3) the defendant's breach of its contractual
obligations, and (4) damages resulting from the breach”. Junger v John V. Dinan Assoc., Inc., 164
AD3d 1428, 1430 (2d Dep’t 2018). As the evidence establishes without any genuine issue of triable
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fact, FORM breached the contract, failed to complete the work agreed to and abandoned the
project. Therefore, Plaintiff’s breach of contract must be dismissed and GOLDSTONE’s
counterclaims for Breach of Contract must be granted.
Neither party refutes the existence of the Contract. See Exhibit A, Complaint ¶ 13. See also
Exhibit B, Answer, ¶ 12. Further, as confirmed through Plaintiff’s deposition transcript of John
Sclafani, Plaintiff left the work incomplete, the completion of which was a condition precedent to
any demand for payment or payment obligation by GOLDSTONE. Plaintiff’s testimony
established that FORM is not entitled to payment per the agreement, and that Plaintiff has breached
the contract. Plaintiff himself clearly testified:
Q. So that was the agreement, you were going to invoice the work that was
completed, correct?
A. Right.
Q. Was the plumbing completed?
A. No.
Q. Was the masonry completed?
A. No.
Q. Was the siding and roofing completed?
A. No.
Q. Was the carpentry completed?
A. No.
Q. Was the oak flooring completed?
A. No.
Q. Was the electrical completed?
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A. No.
Q. Was the paint completed?
A. No.
Q. Were there dumpsters?
A. No.
Q. Were the stairs completed?
A. Yes.
Q. Were there any defects or deficiencies in the stairs addressed and
remedied?
A. Yes.
See Exhibit C, Sclafani Tr. 274: 16-25, 275: 2-17.
Q. Was the deck completed?
A. No.
Q. Were the upper level doors completed?
A. No.
Q. Were the lower level doors completed?
A. No.
Q. Was the upper level bath completed?
A. No.
Q. Was the kitchen installation completed?
A. No.
Q. Were the moldings completed?
A. No.
Q. Was the tile labor completed?
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A. No.
Q. Was all demolition completed?
A. Yes.
See Exhibit C, Sclafani Tr. 276: 7-25.
The only actual work done that Plaintiff testified to be complete out of the entire contract
listed earlier was allegedly the stairs, which is only a portion of the carpentry, and after defective
installation was allegedly “remedied”. Regardless, since payment was never triggered, Defendant
could not be in breach, and Plaintiff would only be entitled to payment upon completion of the
work performed.
Moreover, Plaintiff’s claims that Defendant “kicked Plaintiff off the job” defies credulity,
as the documentary evidence conclusively shows that Defendant had drafted a letter to the town
withdrawing their name from the permit before he was even allegedly discharged. It follows that
any claims by Plaintiff that GOLDSTONE was the one to cease the relationship between the parties
is plainly false and proven so. As evidenced by a text message sent by Plaintiff to Defendant the
night of May 21, 2017 at approximately 8:15 PM, Defendant was clearly expecting Plaintiff to
show up to the Property to continue working by his request that GOLDSTONE “please try to get
there is early as possible” for the next day via text, also supported by an email from GOLDSTONE
to Plaintiff stating what she wanted “him to continue with the following week to finish the entire
upstairs which he had not even done anything on” See Exhibit D, Goldstone Tr. 125: 11-20. Also
see Exhibits E and G.
As stated above, FORM had also prepared a letter to the Town of Hempstead, Department
of Buildings dated May 22, 2017 (“FORM Letter”) wherein Mr. Sclafani wrote: “Please remove
Form Contracting Inc. from the building permit pertaining to the above referenced property as of
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May 22, 2017”. See Exhibit F. It cannot reasonably be disputed that GOLDSTONE was expecting
Plaintiff on May 22, 2017, and never directed him to stop work. See Exhibit D, Goldstone Tr. 129:
12-17. Plaintiff submitted the FORM Letter abandoning the project with no prior notice to
GOLDSTONE, breaching the contract. See Exhibit D, Goldstone Tr. 152: 14-17.
Briefly, any argument that the Town of Hempstead, a municipality, would advise a party
to back date a letter to avoid “liability” is in essence an admission of fraud, with far reaching
implications. See Exhibit C, Sclafani Tr. 260: 3-9. In any event, the timeline above resolves any
issue in regard to this claim, as Plaintiff’s letter confirms that Plaintiff abandoned the job. Further,
Plaintiff’s potential claim that he was told to backdate the FORM letter is impossible, as the Town
of Hempstead Department of Buildings (“Town Letter”), citing the Town Code, stated that “the
General Contractor on the permit have removed themselves from the project”. See Exhibit G.
As a matter of law and logic, it would thus be impossible for Plaintiff to have drafted the
FORM letter on May 29, 2017 and have backdated it to May 22, 2017 because of the May 25,
2017 Hempstead Letter mentions FORM’s May 22nd letter and its contents. This unfortunately
proves Plaintiff’s testimony was perjurious. Plaintiff’s testimony that it was “definitely over a
week” that he went to the Town (Exhibit C, Sclafani Tr. 262: 2-4) is proven false, as the Town
Letter states that FORM would be removed as of May 22, 2017.
Therefore, given the above-mentioned breach of contract and lack of work actually
completed at the Property, Plaintiff is not entitled to payment under its First Cause of Action for
Breach of Contract as a matter of law, and GOLDSTONE is entitled to summary judgment for
their First Counterclaim for Breach of Contract.
B. Defendant is entitled to Summary Judgment on Defendant’s Second Counterclaim
for Fraud in the Inducement
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A fundamental and undeniable condition precedent to Defendant entering into the Contract
with Plaintiff was that FORM represented themselves as a General Contractor licensed, insured,
and qualified to enter into a contract for general contracting services at the Property. (The
“Contract”). See Exhibit B, p. 10, ¶ 8-9. A General Contractor is clearly distinguishable from a
carpenter, as the latter simply performs a trade, and the former supervises and coordinates a
number of trades in one project. However, the pleadings alone address this issue and dispose of
any question of triable fact. To that end, a careful review of the Complaint reveals that Plaintiff
attempted to dance around the issue of their qualifications, pleading only that Plaintiff had a
“carpenters contractor license” and not any license, or insurance, as a General Contractor. See
Exhibit A ¶ 4 and 5.
Clearly, the scope of work contemplated by the parties extended far beyond the services of
a carpenter and involved the supervision, retention, and work by various trades, including but not
limited to masonry, plumbing, electrical, roofing, siding, landscaping, and more. But for the false
and fraudulent inducement, GOLDSTONE would not have entered into the agreement with
Plaintiff. See Goldstone Aff. ¶ 10.
Furthermore, Plaintiff testified that he went to the job “to bang nails and do carpentry work”
yet drafted the Contract for General Contracting work. In terms of holding the requisite insurance,
John Sclafani testified, for example:
Q. What other vehicles were on the construction job?
A. Masonry work, mason, there was equipment, siding, the plumber, the
electrician.
Q. So you don’t know if any of the those vehicles were insured for work
connected to construction?
A. No, I do not.
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See Exhibit C, John Sclafani Tr. 339: 18-25.
C. Plaintiff’s Second Cause of Action for Account Stated must be dismissed, as Plaintiff
conceded that the invoices contain additional interest and charges that were not
agreed upon or part of the Contract terms
The testimony of Plaintiff himself also confirms that the invoices alleged to form the basis
for Plaintiff’s claims are exaggerated and contain interest charges of 1.5% per month, amounts
which were not agreed to by the parties. In addition to the above testimony that the work was not
even close to complete, the following is dispositive on the integrity of the invoices themselves,
and proves that interest was not contemplated in the initial agreement nor did the parties discuss
it:
Q. Did a time come where you started including interest on invoices?
A. Yes.
Q. What rate of interest were you –
A. 1.5.
Q. 1.5 percent a month?
A. I believe so.
Q. You included that on your invoices, correct?
A. Yes.
Q. Did you ever have an agreement with Ms. Goldstone that you were going to
subject outstanding invoices to a 1.5 percent a month interest rate?
A. No.
Q. So what led you to believe that you could do so?
A. I just did.
See Exhibit C, Sclafani Tr. 271: 7-24
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Q. Was there any legal authority you were relying upon, statute –
A. No.
Q. – or other –
A. No.
Q. What were the payment terms for invoices?
A. Never had a payment term.
Q. Okay.
A. In other words, I would give her an invoice, probably a day or two later she
would give me a check.
Q. But what were the terms?
A. There was no terms.
Q. You didn’t include terms in your agreement?
A. No.
Q. How come?
A. I’m a gentleman.
Q. What does that mean?
A. That means I have a lot of trust in people.
Q. So you’re a gentleman, so you decided not to put payment terms in the
agreement?
A. Yes.
See Exhibit C, Sclafani Tr. 271: 25, 272: 2-25, 273: 2-4.
Even if the lien was valid (signed by a person with actual knowledge or actual agent of
Plaintiff as discussed below), “A lienor may seek amounts due from both written contracts and
from change orders for extras, depending on whether the owner gave his consent for the extra
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work. The lienor's right to recover is limited by the contract price or the reasonable value of the
labor and materials provided.” DiSario v Rynston, 138 AD3d 672, 673 (2d Dep’t 2016) (emphasis
added). There is no dispute that since the work was never complete, as Plaintiff’s admission
confirms, in addition to the fact that Defendant never gave consent to any additional charges or
interest, the lien amount is severely inflated. See also Lien Law § 3.
D. Plaintiff’s Third Cause of Action for Unjust Enrichment and Fourth Cause of Action
for Quantum Meruit must be dismissed, as each is duplicative of the Breach of
Contract, in addition to Plaintiff failing to complete the work that is a condition
precedent to payment in the first instance.
Plaintiff’s cause of action for Quantum Meruit must be dismissed as a matter of law. “If
neither the Plaintiff nor the Defendant disputes the enforceability or validity of the Agreement
forming the basis of the action, the cause of action sounding in quantum meruit is duplicative of
the cause of action sounding in breach of contract.” R&B Design Concepts v Wenger Constr. Co.,
2016 N.Y. Misc. LEXIS 6709, (Sup Ct, Nassau County Sep. 6, 2016, No. 601650/15). Internal
citations omitted. There is no dispute here as to the validity of the Contract. Where a cause of
action for Quantum Meruit, recovery for quasi contract is pled while there is an undisputed
agreement, the cause of action is moot and duplicative. The same follows for unjust enrichment:
“The existence of a valid and enforceable written contract governing a particular subject matter
precludes recovery in quasi-contract, such as by quantum meruit and unjust enrichment, for events
arising out of the same subject matter.” Id. As a result of the foregoing, both causes of action must
be dismissed.
THE FILING THE LIEN WAS INVALID, IN THAT THE SIGNOR OF THE LIEN WAS NOT
AUTHORIZED AS AN AGENT OF FORM CONTRACTING, REQUIRING DISMISSAL OF
PLAINTIFF’S FIFTH CAUSE OF ACTION AND SUMMARY JUDGMENT TO
DEFENDANT ON DEFENDANT’S COUNTERCLAIM
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A. Plaintiff’s Fifth Cause of Action must be dismissed, in that the lien was exaggerated
and filed without authorization or signature from any person with personal
knowledge of any transaction between the parties
As a preliminary matter, before further delving into the exaggerated nature of the Plaintiff’s
June 22, 2017 lien, it is important to note that the lien is itself invalid as the signor was not the
lienor, his assignee or legal representative. As required by NY Lien L § 41 (2012),
Enforcement of mechanic's lien on real property. A mechanic's lien on real property
may be enforced against such property, and against a person liable for the debt
upon which the lien is founded, by an action, by the lienor, his assignee or
legal representative, in the supreme court or in a county court otherwise having
jurisdiction regardless of the amount of such debt, or in a court which has
jurisdiction in an action founded on a contract for a sum of money equivalent
to the amount of such debt.
NY Lien L § 41 (2012), Emphasis added.
Testimony disposes of any material issue of fact here; the end result is that the Lien must
be discharged as a matter of law and the Plaintiff’s Fifth Cause of Action dismissed. The Lien is
signed by “Mark Nash, as Agent of Form Contracting, Inc. For Filing Purposes Only”. See
Exhibit F, emphasis added. John Sclafani, the owner of FORM, testified upon being shown the
filed lien:
Q. Can you take a look at that document please?
Q. Do you recognize that document?
A. Yes.
Q. When was the first time you saw it?
(…)
A. This document here, today.
Q. Do you know who Mark Nash is?
A. No.
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Q. Have you ever met a person named Mark Nash?
A. No.
Q. Have you ever appointed anyone as an agent for Form Contracting named Mark
Nash?
A. Not that I know of, no.
Q. Are you aware of any reason why you would have appointed a person named
Mark Nash as ana agent for Form Contracting?
A. No.
Q. Did you ever communicate with a person named Mark Nash?
A. No.
Q. If Mark Nash spoke on your behalf, would it be accepted as being from Form
Contracting?
Mr. Abiuso: Objection. He doesn’t know him, never spoke to him, doesn’t
know who he is.
Q. Was Mark Nash authorized to file any papers on your behalf?
A. I don’t know who Mark Nash is.
(…)
Q. You never appointed Mark Nash as your agent for any purpose?
Mr. Abiuso: Asked and answered several times.
A. No.
See Exhibit C, Sclafani Tr. 269: 2-25, 270: 2-25.
Furthermore, in order to file a valid lien in New York, the claimant must be properly
licensed. As can be gleaned from the below, FORM is not properly licensed. While Plaintiff claims
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they were they licensed in 2016 in Nassau County, the license pled by Plaintiff is one for carpentry
work, not general contracting as required here. As the search done included any license and further
confirmed via testimony, FORM currently holds no licenses in Nassau County. See Exhibit D,
Goldstone Tr: 159: 2-13, 179: 16-22. A search was also conducted for FORM CONTRACTING,
INC. producing the same result.
Further, the specific license number as pled in the Complaint for carpentry work was
searched with no result (H0414840000, see Exhibit A):
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Not only is FORM now unlicensed, Plaintiff confirmed he was not knowledgeable enough
to do the necessary work:
When I questioned that—work that he did in our house was incorrect and I said I
can’t believe that you didn’t know how to miter the corners of our deck and some
other work that he did, and I said and Lucy’s house in her certain area was done
very nice, he said, “Oh, I didn’t do those things. I wouldn’t know how to do that.”
See Exhibit D, Goldstone Tr. 104: 22-25, 105: 2-6.
The law is clear:
….an unlicensed home improvement contractor forfeits his right to recover
damages based either on breach of contract or on quantum meruit and that
an unlicensed contractor also forfeits the right to foreclose a mechanic's lien… The
Court of Appeals had several opportunities to reconsider or limit the scope of its
holding in Richards Conditioning v Oleet (supra), as that holding has been applied
to unlicensed home improvement contractors, and has declined to do so. In B&F
Bldg. Corp. v Liebig (76 NY2d 689, 563 N.Y.S.2d 40, 564 N.E.2d 650) and
in Mortise v 55 Liberty Owners Corp. (63 NY2d 743, affd for [*263] reasons
stated at 102 AD2d 719, 477 N.Y.S.2d 2), the Court of Appeals held that home
improvement contractors who had not secured the license required by a local New
York City law were not entitled to recover damages for breach of contract.
Ellis v Gold, 204 A.D.2d 261, 262 (2d Dep’t 1994).
The First Department has similarly held:
Obtaining a home improvement contractor's license is neither a ministerial act nor
a mere technicality (Blake Elec. Contr. Co. v Paschall, 222 AD2d 264, 266, 635
N.Y.S.2d 205 [1st Dept 1995]; Matter of Heller [Clark Constr. Corp.], 178 AD2d
195, 195 [1st Dept 1991]). Rather, "strict compliance with the licensing statute [i.e.
Administrative Code § 20-387] is required, with the failure to comply barring
recovery regardless of [*8] whether the work performed was satisfactory, whether
the failure to obtain the license was willful or, even, whether the homeowner knew
of the lack of a license and planned to take advantage of its absence" (Chosen
Constr. Corp. v Syz, 138 AD2d 284, 286, 525 N.Y.S.2d 848 [1st Dept 1988]; see
[**4] B & F Bldg. Corp. v Liebig, 76 NY2d 689, 564 N.E.2d 650, 563 N.Y.S.2d
40 [1990]; Blake Elec. Contr. Co., 222 AD2d 264; Mortise v 55 Liberty Owners
Corp., 102 AD2d 719, 477 N.Y.S.2d 2 [1st Dept 1984], affd 63 NY2d 743, 469
N.E.2d 529, 480 N.Y.S.2d 208 [1984]).
KSP Constr., LLC v LV Prop. Two, LLC, 2024 N.Y. App. Div. LEXIS 348, 204 NYS3d 54
(2d Dep’t 2024).
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Preview
FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU FORM CONTRACTING, INC., Index No.: 613715/2019 Plaintiff, -against- SUSAN GOLDSTONE and SUSAN GOLDSTONE as the Executor of the Estate of JEANNE GOLDSTONE, Defendants. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AGULNICK KREMIN P.C. 510 Broadhollow Road, Suite 303 Melville, New York 11747 Counsel for Defendants 1 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... 3 PRELIMINARY STATEMENT .................................................................................................... 4 BACKGROUND ............................................................................................................................ 6 ARGUMENT .................................................................................................................................. 8 PLAINTIFF’S CLAIMS MUST BE DISMISSED, AND DEFENDANTS’ COUNTERCLAIM FOR BREACH OF CONTRACT GRANTED, AS PLAINTIFF ADMITS AND CONFIRMS THAT PLAINTIFF BREACHED THE CONTRACT, FAILED TO COMPLETE THE WORK, AND WAS NOT ENTITLED TO PAYMENT PER THE AGREEMENT BETWEEN THE PARTIES .............................................................................. 9 A. Plaintiff breached the Contract as a matter of law, requiring dismissing Plaintiff’s First Cause of Action for Breach, and entitling Defendant to summary judgment on her First Counterclaim. .......................................................................................................................... 9 B. Defendant is entitled to Summary Judgment on Defendant’s Second Counterclaim for Fraud in the Inducement ....................................................................................................... 13 C. Plaintiff’s Second Cause of Action for Account Stated must be dismissed, as Plaintiff conceded that the invoices contain additional interest and charges that were not agreed upon or part of the Contract terms ................................................................................................. 15 D. Plaintiff’s Third Cause of Action for Unjust Enrichment and Fourth Cause of Action for Quantum Meruit must be dismissed, as each is duplicative of the Breach of Contract, in addition to Plaintiff failing to complete the work that is a condition precedent to payment in the first instance. ................................................................................................................... 17 THE FILING THE LIEN WAS INVALID, IN THAT THE SIGNOR OF THE LIEN WAS NOT AUTHORIZED AS AN AGENT OF FORM CONTRACTING, REQUIRING DISMISSAL OF PLAINTIFF’S FIFTH CAUSE OF ACTION AND SUMMARY JUDGMENT TO DEFENDANT ON DEFENDANT’S COUNTERCLAIM.......................... 17 A. Plaintiff’s Fifth Cause of Action must be dismissed, in that the lien was exaggerated and filed without authorization or signature from any person with personal knowledge of any transaction between the parties ...................................................................................... 18 PLAINTIFF EXAGGERATED THE LIEN, CHARGED IMPERMISSIBLE INTEREST NOT AGREED UPON AND INVOICED FOR WORK NEVER COMPLETED ........................... 22 CONCLUSION ............................................................................................................................. 23 2 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 TABLE OF AUTHORITIES Cases Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974) ....................................................... 8 Appel v. Root, 236 N.Y.S.2d 376 (Sup. Ct. Kings Cty), aff’d, 18 A.D.2d 686, 236 N.Y.S.2d 5 (1st Dep’t 1962), ................................................................................................................................ 8 DiSario v Rynston, 138 AD3d 672, 673 (2d Dep’t 2016) ............................................................. 16 Donadio v. Crouse-Irving Memorial Hospital, Inc., 75 A.D.2d 715, 427 N.Y.S.2d 118 (4th Dep’t 1980) ........................................................................................................................................... 8 Ellis v Gold, 204 A.D.2d 261, 262 (2d Dep’t 1994) ..................................................................... 21 Ihmels v. Kahn, 126 A.D.2d 701, 511 N.Y.S.2d 306 (2d Dep’t 1987) ........................................... 9 Junger v John V. Dinan Assoc., Inc., 164 AD3d 1428, 1430 (2d Dep’t 2018) .............................. 9 Kahn v. City of New York, 37 A.D.2d 520, 321 N.Y.S.2d 791 (1st Dep’t 1971) ............................ 8 KSP Constr., LLC v LV Prop. Two, LLC, 2024 N.Y. App. Div. LEXIS 348, 204 NYS3d 54 (2d Dep’t 2024) ............................................................................................................................... 21 Pyramid Champlain Co. V R.P. Brosseau & Co., 267 A.D.2d 539, 542 (3d Dep’t 1999) ........... 22 R&B Design Concepts v Wenger Constr. Co., 2016 N.Y. Misc. LEXIS 6709, (Sup Ct, Nassau County Sep. 6, 2016, No. 601650/15) ...................................................................................... 17 Safety Commercial Corporation v. Show Cars, Inc., 233 N.Y.S.2d 172 (Sup. Ct. Nassau Cty 1962) ........................................................................................................................................... 9 Sheng Sheng Constr., Inc. v Har's Constr., Inc., 39 Misc 3d 1238[A], 1238A, 2013 NY Slip Op 50921[U], (Sup Ct, Queens County 2013)................................................................................ 22 Shields v. Stevens, 55 A.D.2d 1017, 391 N.Y.S.2d 849 (4th Dep’t 1977)....................................... 9 Super v. Abdelazim, 108 A.D.2d 1040, 485 N.Y.S.2d 612 (3rd Dep’t 1985) .................................. 9 Wiener v. Ga-Ro Die Cutting, Inc., 104 A.d.2D 331, 479 N.Y.S.2d 35 (1st Dep’t 1984) .............. 9 Williams v. Lombardini, 38 Misc.2d 146, 238 N.Y.S.2d 63 (Sup. Ct. Broome Cty 1963) ............ 8 Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980) .................................. 9 Statutes CPLR §3212(b) ............................................................................................................................... 8 Lien Law § 3 ................................................................................................................................. 16 NY Lien L § 41 (2012) ................................................................................................................. 17 3 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 Defendants SUSAN GOLDSTONE and SUSAN GOLDSTONE, as the Executor of the Estate of JEANNE GOLDSTONE (together “GOLDSTONE”) submit this memorandum of law in support of their motion pursuant to CPLR § 3212(b) granting Defendant summary judgment against Plaintiff FORM CONTRACTING, INC., dismissing Plaintiff’s First cause of action for Breach of Contract, Plaintiff’s Second cause of action for Account Stated, Plaintiff’s Third cause of action for Unjust Enrichment, Plaintiff’s Fourth cause of action for Quantum Meruit, and Plaintiff’s Fifth cause of action for Foreclosure on a Mechanic’s Lien; Granting Defendant’s First Counterclaim for Breach of Contract, Defendant’s Second Counterclaim for Fraud in the Inducement, Defendant’s Fifth Counterclaim for Lien Law Violations; and for such other and further relief as this Court deems just, proper, and equitable. PRELIMINARY STATEMENT The instant action is an unfortunate attempt by an unscrupulous contractor to take advantage of and extort unearned money from a Superstorm Sandy victim attempting to complete renovations to the home following catastrophic damages from the storm. The end result being a defective, incomplete home, which remains unrepaired and unoccupied, and a lawsuit. However, FORM CONTRACTING, INC. is the party in breach as a matter of law, who first fraudulently induced Defendant into entering into the contract by claims of being a licensed General Contractor, and then undertook to overzealously attempt to extort unearned money from Defendant without completing the work agreed to, with amounts exaggerated in violation of the Lien Law as a matter of law, and impermissible interest added on a whim. As the evidence shows, FORM abandoned the project contracted for at Defendants’ property without completing the work agreed to, yet demanded payment nonetheless, with a complete disregard for the agreed upon 4 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 payment terms, specifically that payment was not due until the work was completed. FORM thereafter filed a lien citing numbers that are severely inflated, exaggerated, and even filed by an individual who was not an agent to Plaintiff with any personal knowledge, rendering the lien a nullity as a matter of law. While FORM initiated this action against Defendants, Defendants provide dispositive evidence disposing of any claims by Plaintiff, requiring dismissal of Plaintiff’s First Cause of Action for Breach of Contract, Second Cause of Action for Account Stated, Third Cause of Action for Unjust Enrichment, Fourth Cause of Action for Quantum Meruit, and Fifth Cause of Action to Foreclose Mechanic’s Lien; and further supporting summary judgment on Defendants’ First counterclaim for Breach of Contract, Second Cause of Action for Fraud in the Inducement, and Fifth Counterclaim for Lien Law Violations and damages. Each issue will be discussed in turn. THE PLEADINGS As stated above, Plaintiff’s action consists of five causes of action, including the First Cause of Action for Breach of Contract, the Second Cause of Action for Account Stated, the Third Cause of Action for Unjust Enrichment, a Fourth Cause of Action for Quantum Meruit, and the Fifth Cause of Action to Foreclose a Mechanic’s Lien. See Exhibit A.1 Defendant interposed an Answer with Counterclaims, asserting a First Counterclaim for Breach of Contract, a Second Cause of Action for Fraud in the Inducement, a Third Cause of Action for Unjust Enrichment, and a Fourth Cause of Action for Negligence, and a Fifth Cause of Action for Lien Law Violations. See Exhibit B. 1 All references to exhibits refer to the exhibits annexed to the accompanying Grodsky Affirmation in further support of Defendants’ motion for summary judgment. 5 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 BACKGROUND As is undisputed, GOLDSTONE’s home at 176 E. Waukena Avenue, Oceanside, New York 11572 (the “Property”) was damaged from 2012 Superstorm Sandy. On or about June 12, 2016, FORM visited the Property, assessed the condition of the home, and discussed the remodeling and construction services that may be done. See Exhibit B, p. 10, ¶ 6, Goldstone Aff. ¶ 4, 5, see also Grodsky Aff. ¶ 3. this visit and during conversations with GOLDSTONE, FORM represented themselves as a general contractor licensed, insured, and qualified to enter into a contract (the “Contract”) for general contracting services at the Property. See Exhibit B, Goldstone Aff. ¶ 6, see also Grodsky Aff. ¶ 5. In reasonable reliance of FORM’s representations, GOLDSTONE retained FORM for the repair and restoration of the Property by FORM. Goldstone Aff. ¶ 7. However, unbeknownst to GOLDSTONE, FORM was unqualified for general contracting, and only maintained a permit to perform carpentry work. In fact, the Complaint itself states that the Plaintiff only maintains a “carpenters contractor license”, which there now seems to be no record of. See Exhibit A ¶ 4, 5. While FORM represented there was information still to be provided by them to GOLDSTONE prior to the commencement of work, they began work anyway within two days of the signed contract and within the three-day statutory right of recission conveniently omitted from the Contract. See Exhibit D, Goldstone Tr. 119: 25, 120: 2-5. Soon after FORM began work, it became clear that FORM’s work was unsatisfactory, defective, insufficient, and deviated from all accepted norms and industry standards, as well as shoddy and incomplete. The defective work included but is not limited to roofing, support beams, subflooring, interior stairs, windows and doors, sheetrock, siding, sheathing, waterproofing, land fill/the use of foul material, retaining wall and placement, bathroom installation, insulation, 6 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 plumbing, electrical, painting and preparation, exterior deck, foundation repairs, flood vents, front steps, landing, masonry, improper inspection requirements, and more. See Exhibit A ¶ 13; Exhibit B Page 1 ¶ 5, Page 10 ¶ 12; Goldstone Aff. ¶ 7; and SOMF ¶ 5. FORM further failed to complete items contracted for without explanation. See Exhibit B, p. 11, ¶ 17-18, p.12 ¶ 19-21, see also Exhibit C, Sclafani Tr. 274: 16-25, 275: 2-17, 276: 7-25. Ultimately, FORM repudiated the contract and abandoned the project at the Property and removed its name from the permit filed with the town. See Exhibit F, see also Goldstone Aff. ¶ 16, 17. As a result, new contractors are necessary to complete, and remediate all of FORM’s shoddy workmanship. See Exhibit D, Goldstone Tr. 158: 16-18, 161: 17-20. Subsequent to the breakdown of the contractual relationship via FORM’s breach, FORM filed a mechanic’s lien against the Property for work not completed, with exaggerated amounts, containing impermissible interest fabricated by Plaintiff, and signed by an individual without knowledge or even authorization to action as an agent of Plaintiff, as admitted by Plaintiff, and notwithstanding the fact that Plaintiff abandoned the job. See Exhibit G. Most significantly is the fact that Plaintiff effectively admitted that payment was never due, as the agreement between the parties was that payment would be due when the work was completed. As is discussed more fully below, Plaintiff admitted that none of the work was actually completed. See Exhibit C, Sclafani Tr. 276: 7-25. It follows as a matter of law that if completion of work is a condition precedent to payment, the fact that the roofing and siding was not completed, the electrical was not completed, the masonry was not completed, the carpentry was not completed, the demolition was not completed, the plumbing was not completed, and the flooring, paint, doors, and deck was not completed, all translates into Plaintiff breaching the contract without any entitlement to payment. 7 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 ARGUMENT Summary judgment shall be granted if, upon all the papers and proof submitted, the cause of action shall be established sufficiently to warrant the court as a matter of law to direct judgment in favor of any party. CPLR § 3212(b). Summary judgment relieves congested court calendars and eliminates unnecessary expense to litigants where no material issue of fact is present. Donadio v. Crouse-Irving Memorial Hospital, Inc., 75 A.D.2d 715, 427 N.Y.S.2d 118 (4th Dep’t 1980); Williams v. Lombardini, 38 Misc.2d 146, 238 N.Y.S.2d 63 (Sup. Ct. Broome Cty 1963). It is favored as a “fruitful remedy” which because it is particularly useful, should be encouraged. Kahn v. City of New York, 37 A.D.2d 520, 321 N.Y.S.2d 791 (1st Dep’t 1971), aff’d, 30 N.Y.2d 690, 332 N.Y.S.2d 638 (1972). Where, as here, no issue of material fact is presented to justify a trial, summary judgment should be exercised “without hesitation”. Appel v. Root, 236 N.Y.S.2d 376 (Sup. Ct. Kings Cty), aff’d, 18 A.D.2d 686, 236 N.Y.S.2d 5 (1st Dep’t 1962), aff’d, 13 N.Y.2d 748, 241 N.Y.S.2d 870 (1963); Williams, 38 Misc.2d 146, 238 N.Y.S.2d 63. “An unfounded reluctance to employ the remedy would only serve to swell the trial calendar and thus to deny other litigants the right to have their claims promptly adjudicated.” Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974). A case is ripe for summary judgment if “…upon all the papers and proof submitted, the cause of action…shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of [the moving] party.” CPLR §3212(b). The motion for summary judgment shall be supported by affidavits and other available proof by a person having personal knowledge of the facts and it shall show that there is no defense. Id. A Court’s function when determining a motion for summary judgment is one of issue finding, not issue determination, and only where a 8 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 genuine issue of fact is found to exist should the motion be denied. Super v. Abdelazim, 108 A.D.2d 1040, 485 N.Y.S.2d 612 (3rd Dep’t 1985); Wiener v. Ga-Ro Die Cutting, Inc., 104 A.d.2D 331, 479 N.Y.S.2d 35 (1st Dep’t 1984). Furthermore, it is well-settled law that once the terms of a contract are clear and no triable issues of fact are raised, summary judgment should be granted. Safety Commercial Corporation v. Show Cars, Inc., 233 N.Y.S.2d 172 (Sup. Ct. Nassau Cty 1962). As a result, one who contests the motion for summary judgment must present sufficient proof to demonstrate the existence of a genuine triable issue of fact. See Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980). The courts in this jurisdiction have consistently held that allegations amount to no more than unsubstantiated conclusory assertions are not sufficient to defeat the motion. Ihmels v. Kahn, 126 A.D.2d 701, 511 N.Y.S.2d 306 (2d Dep’t 1987); Shields v. Stevens, 55 A.D.2d 1017, 391 N.Y.S.2d 849 (4th Dep’t 1977). To defeat a motion for summary judgment, the opposing party must assemble and lay bare its affirmative proof to demonstrate that genuine triable issues of fact exist. A bona fide triable issue must be established and reliance upon mere suspicion or surmise is insufficient for this purpose. PLAINTIFF’S CLAIMS MUST BE DISMISSED, AND DEFENDANTS’ COUNTERCLAIM FOR BREACH OF CONTRACT GRANTED, AS PLAINTIFF ADMITS AND CONFIRMS THAT PLAINTIFF BREACHED THE CONTRACT, FAILED TO COMPLETE THE WORK, AND WAS NOT ENTITLED TO PAYMENT PER THE AGREEMENT BETWEEN THE PARTIES A. Plaintiff breached the Contract as a matter of law, requiring dismissing Plaintiff’s First Cause of Action for Breach, and entitling Defendant to summary judgment on her First Counterclaim. In order to establish breach of contract, one must show: “(1) the existence of a contract, (2) the plaintiff's performance pursuant to the contract, (3) the defendant's breach of its contractual obligations, and (4) damages resulting from the breach”. Junger v John V. Dinan Assoc., Inc., 164 AD3d 1428, 1430 (2d Dep’t 2018). As the evidence establishes without any genuine issue of triable 9 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 fact, FORM breached the contract, failed to complete the work agreed to and abandoned the project. Therefore, Plaintiff’s breach of contract must be dismissed and GOLDSTONE’s counterclaims for Breach of Contract must be granted. Neither party refutes the existence of the Contract. See Exhibit A, Complaint ¶ 13. See also Exhibit B, Answer, ¶ 12. Further, as confirmed through Plaintiff’s deposition transcript of John Sclafani, Plaintiff left the work incomplete, the completion of which was a condition precedent to any demand for payment or payment obligation by GOLDSTONE. Plaintiff’s testimony established that FORM is not entitled to payment per the agreement, and that Plaintiff has breached the contract. Plaintiff himself clearly testified: Q. So that was the agreement, you were going to invoice the work that was completed, correct? A. Right. Q. Was the plumbing completed? A. No. Q. Was the masonry completed? A. No. Q. Was the siding and roofing completed? A. No. Q. Was the carpentry completed? A. No. Q. Was the oak flooring completed? A. No. Q. Was the electrical completed? 10 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 A. No. Q. Was the paint completed? A. No. Q. Were there dumpsters? A. No. Q. Were the stairs completed? A. Yes. Q. Were there any defects or deficiencies in the stairs addressed and remedied? A. Yes. See Exhibit C, Sclafani Tr. 274: 16-25, 275: 2-17. Q. Was the deck completed? A. No. Q. Were the upper level doors completed? A. No. Q. Were the lower level doors completed? A. No. Q. Was the upper level bath completed? A. No. Q. Was the kitchen installation completed? A. No. Q. Were the moldings completed? A. No. Q. Was the tile labor completed? 11 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 A. No. Q. Was all demolition completed? A. Yes. See Exhibit C, Sclafani Tr. 276: 7-25. The only actual work done that Plaintiff testified to be complete out of the entire contract listed earlier was allegedly the stairs, which is only a portion of the carpentry, and after defective installation was allegedly “remedied”. Regardless, since payment was never triggered, Defendant could not be in breach, and Plaintiff would only be entitled to payment upon completion of the work performed. Moreover, Plaintiff’s claims that Defendant “kicked Plaintiff off the job” defies credulity, as the documentary evidence conclusively shows that Defendant had drafted a letter to the town withdrawing their name from the permit before he was even allegedly discharged. It follows that any claims by Plaintiff that GOLDSTONE was the one to cease the relationship between the parties is plainly false and proven so. As evidenced by a text message sent by Plaintiff to Defendant the night of May 21, 2017 at approximately 8:15 PM, Defendant was clearly expecting Plaintiff to show up to the Property to continue working by his request that GOLDSTONE “please try to get there is early as possible” for the next day via text, also supported by an email from GOLDSTONE to Plaintiff stating what she wanted “him to continue with the following week to finish the entire upstairs which he had not even done anything on” See Exhibit D, Goldstone Tr. 125: 11-20. Also see Exhibits E and G. As stated above, FORM had also prepared a letter to the Town of Hempstead, Department of Buildings dated May 22, 2017 (“FORM Letter”) wherein Mr. Sclafani wrote: “Please remove Form Contracting Inc. from the building permit pertaining to the above referenced property as of 12 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 May 22, 2017”. See Exhibit F. It cannot reasonably be disputed that GOLDSTONE was expecting Plaintiff on May 22, 2017, and never directed him to stop work. See Exhibit D, Goldstone Tr. 129: 12-17. Plaintiff submitted the FORM Letter abandoning the project with no prior notice to GOLDSTONE, breaching the contract. See Exhibit D, Goldstone Tr. 152: 14-17. Briefly, any argument that the Town of Hempstead, a municipality, would advise a party to back date a letter to avoid “liability” is in essence an admission of fraud, with far reaching implications. See Exhibit C, Sclafani Tr. 260: 3-9. In any event, the timeline above resolves any issue in regard to this claim, as Plaintiff’s letter confirms that Plaintiff abandoned the job. Further, Plaintiff’s potential claim that he was told to backdate the FORM letter is impossible, as the Town of Hempstead Department of Buildings (“Town Letter”), citing the Town Code, stated that “the General Contractor on the permit have removed themselves from the project”. See Exhibit G. As a matter of law and logic, it would thus be impossible for Plaintiff to have drafted the FORM letter on May 29, 2017 and have backdated it to May 22, 2017 because of the May 25, 2017 Hempstead Letter mentions FORM’s May 22nd letter and its contents. This unfortunately proves Plaintiff’s testimony was perjurious. Plaintiff’s testimony that it was “definitely over a week” that he went to the Town (Exhibit C, Sclafani Tr. 262: 2-4) is proven false, as the Town Letter states that FORM would be removed as of May 22, 2017. Therefore, given the above-mentioned breach of contract and lack of work actually completed at the Property, Plaintiff is not entitled to payment under its First Cause of Action for Breach of Contract as a matter of law, and GOLDSTONE is entitled to summary judgment for their First Counterclaim for Breach of Contract. B. Defendant is entitled to Summary Judgment on Defendant’s Second Counterclaim for Fraud in the Inducement 13 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 A fundamental and undeniable condition precedent to Defendant entering into the Contract with Plaintiff was that FORM represented themselves as a General Contractor licensed, insured, and qualified to enter into a contract for general contracting services at the Property. (The “Contract”). See Exhibit B, p. 10, ¶ 8-9. A General Contractor is clearly distinguishable from a carpenter, as the latter simply performs a trade, and the former supervises and coordinates a number of trades in one project. However, the pleadings alone address this issue and dispose of any question of triable fact. To that end, a careful review of the Complaint reveals that Plaintiff attempted to dance around the issue of their qualifications, pleading only that Plaintiff had a “carpenters contractor license” and not any license, or insurance, as a General Contractor. See Exhibit A ¶ 4 and 5. Clearly, the scope of work contemplated by the parties extended far beyond the services of a carpenter and involved the supervision, retention, and work by various trades, including but not limited to masonry, plumbing, electrical, roofing, siding, landscaping, and more. But for the false and fraudulent inducement, GOLDSTONE would not have entered into the agreement with Plaintiff. See Goldstone Aff. ¶ 10. Furthermore, Plaintiff testified that he went to the job “to bang nails and do carpentry work” yet drafted the Contract for General Contracting work. In terms of holding the requisite insurance, John Sclafani testified, for example: Q. What other vehicles were on the construction job? A. Masonry work, mason, there was equipment, siding, the plumber, the electrician. Q. So you don’t know if any of the those vehicles were insured for work connected to construction? A. No, I do not. 14 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 See Exhibit C, John Sclafani Tr. 339: 18-25. C. Plaintiff’s Second Cause of Action for Account Stated must be dismissed, as Plaintiff conceded that the invoices contain additional interest and charges that were not agreed upon or part of the Contract terms The testimony of Plaintiff himself also confirms that the invoices alleged to form the basis for Plaintiff’s claims are exaggerated and contain interest charges of 1.5% per month, amounts which were not agreed to by the parties. In addition to the above testimony that the work was not even close to complete, the following is dispositive on the integrity of the invoices themselves, and proves that interest was not contemplated in the initial agreement nor did the parties discuss it: Q. Did a time come where you started including interest on invoices? A. Yes. Q. What rate of interest were you – A. 1.5. Q. 1.5 percent a month? A. I believe so. Q. You included that on your invoices, correct? A. Yes. Q. Did you ever have an agreement with Ms. Goldstone that you were going to subject outstanding invoices to a 1.5 percent a month interest rate? A. No. Q. So what led you to believe that you could do so? A. I just did. See Exhibit C, Sclafani Tr. 271: 7-24 15 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 Q. Was there any legal authority you were relying upon, statute – A. No. Q. – or other – A. No. Q. What were the payment terms for invoices? A. Never had a payment term. Q. Okay. A. In other words, I would give her an invoice, probably a day or two later she would give me a check. Q. But what were the terms? A. There was no terms. Q. You didn’t include terms in your agreement? A. No. Q. How come? A. I’m a gentleman. Q. What does that mean? A. That means I have a lot of trust in people. Q. So you’re a gentleman, so you decided not to put payment terms in the agreement? A. Yes. See Exhibit C, Sclafani Tr. 271: 25, 272: 2-25, 273: 2-4. Even if the lien was valid (signed by a person with actual knowledge or actual agent of Plaintiff as discussed below), “A lienor may seek amounts due from both written contracts and from change orders for extras, depending on whether the owner gave his consent for the extra 16 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 work. The lienor's right to recover is limited by the contract price or the reasonable value of the labor and materials provided.” DiSario v Rynston, 138 AD3d 672, 673 (2d Dep’t 2016) (emphasis added). There is no dispute that since the work was never complete, as Plaintiff’s admission confirms, in addition to the fact that Defendant never gave consent to any additional charges or interest, the lien amount is severely inflated. See also Lien Law § 3. D. Plaintiff’s Third Cause of Action for Unjust Enrichment and Fourth Cause of Action for Quantum Meruit must be dismissed, as each is duplicative of the Breach of Contract, in addition to Plaintiff failing to complete the work that is a condition precedent to payment in the first instance. Plaintiff’s cause of action for Quantum Meruit must be dismissed as a matter of law. “If neither the Plaintiff nor the Defendant disputes the enforceability or validity of the Agreement forming the basis of the action, the cause of action sounding in quantum meruit is duplicative of the cause of action sounding in breach of contract.” R&B Design Concepts v Wenger Constr. Co., 2016 N.Y. Misc. LEXIS 6709, (Sup Ct, Nassau County Sep. 6, 2016, No. 601650/15). Internal citations omitted. There is no dispute here as to the validity of the Contract. Where a cause of action for Quantum Meruit, recovery for quasi contract is pled while there is an undisputed agreement, the cause of action is moot and duplicative. The same follows for unjust enrichment: “The existence of a valid and enforceable written contract governing a particular subject matter precludes recovery in quasi-contract, such as by quantum meruit and unjust enrichment, for events arising out of the same subject matter.” Id. As a result of the foregoing, both causes of action must be dismissed. THE FILING THE LIEN WAS INVALID, IN THAT THE SIGNOR OF THE LIEN WAS NOT AUTHORIZED AS AN AGENT OF FORM CONTRACTING, REQUIRING DISMISSAL OF PLAINTIFF’S FIFTH CAUSE OF ACTION AND SUMMARY JUDGMENT TO DEFENDANT ON DEFENDANT’S COUNTERCLAIM 17 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 A. Plaintiff’s Fifth Cause of Action must be dismissed, in that the lien was exaggerated and filed without authorization or signature from any person with personal knowledge of any transaction between the parties As a preliminary matter, before further delving into the exaggerated nature of the Plaintiff’s June 22, 2017 lien, it is important to note that the lien is itself invalid as the signor was not the lienor, his assignee or legal representative. As required by NY Lien L § 41 (2012), Enforcement of mechanic's lien on real property. A mechanic's lien on real property may be enforced against such property, and against a person liable for the debt upon which the lien is founded, by an action, by the lienor, his assignee or legal representative, in the supreme court or in a county court otherwise having jurisdiction regardless of the amount of such debt, or in a court which has jurisdiction in an action founded on a contract for a sum of money equivalent to the amount of such debt. NY Lien L § 41 (2012), Emphasis added. Testimony disposes of any material issue of fact here; the end result is that the Lien must be discharged as a matter of law and the Plaintiff’s Fifth Cause of Action dismissed. The Lien is signed by “Mark Nash, as Agent of Form Contracting, Inc. For Filing Purposes Only”. See Exhibit F, emphasis added. John Sclafani, the owner of FORM, testified upon being shown the filed lien: Q. Can you take a look at that document please? Q. Do you recognize that document? A. Yes. Q. When was the first time you saw it? (…) A. This document here, today. Q. Do you know who Mark Nash is? A. No. 18 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 Q. Have you ever met a person named Mark Nash? A. No. Q. Have you ever appointed anyone as an agent for Form Contracting named Mark Nash? A. Not that I know of, no. Q. Are you aware of any reason why you would have appointed a person named Mark Nash as ana agent for Form Contracting? A. No. Q. Did you ever communicate with a person named Mark Nash? A. No. Q. If Mark Nash spoke on your behalf, would it be accepted as being from Form Contracting? Mr. Abiuso: Objection. He doesn’t know him, never spoke to him, doesn’t know who he is. Q. Was Mark Nash authorized to file any papers on your behalf? A. I don’t know who Mark Nash is. (…) Q. You never appointed Mark Nash as your agent for any purpose? Mr. Abiuso: Asked and answered several times. A. No. See Exhibit C, Sclafani Tr. 269: 2-25, 270: 2-25. Furthermore, in order to file a valid lien in New York, the claimant must be properly licensed. As can be gleaned from the below, FORM is not properly licensed. While Plaintiff claims 19 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 they were they licensed in 2016 in Nassau County, the license pled by Plaintiff is one for carpentry work, not general contracting as required here. As the search done included any license and further confirmed via testimony, FORM currently holds no licenses in Nassau County. See Exhibit D, Goldstone Tr: 159: 2-13, 179: 16-22. A search was also conducted for FORM CONTRACTING, INC. producing the same result. Further, the specific license number as pled in the Complaint for carpentry work was searched with no result (H0414840000, see Exhibit A): 20 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO. 613715/2019 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 03/18/2024 Not only is FORM now unlicensed, Plaintiff confirmed he was not knowledgeable enough to do the necessary work: When I questioned that—work that he did in our house was incorrect and I said I can’t believe that you didn’t know how to miter the corners of our deck and some other work that he did, and I said and Lucy’s house in her certain area was done very nice, he said, “Oh, I didn’t do those things. I wouldn’t know how to do that.” See Exhibit D, Goldstone Tr. 104: 22-25, 105: 2-6. The law is clear: ….an unlicensed home improvement contractor forfeits his right to recover damages based either on breach of contract or on quantum meruit and that an unlicensed contractor also forfeits the right to foreclose a mechanic's lien… The Court of Appeals had several opportunities to reconsider or limit the scope of its holding in Richards Conditioning v Oleet (supra), as that holding has been applied to unlicensed home improvement contractors, and has declined to do so. In B&F Bldg. Corp. v Liebig (76 NY2d 689, 563 N.Y.S.2d 40, 564 N.E.2d 650) and in Mortise v 55 Liberty Owners Corp. (63 NY2d 743, affd for [*263] reasons stated at 102 AD2d 719, 477 N.Y.S.2d 2), the Court of Appeals held that home improvement contractors who had not secured the license required by a local New York City law were not entitled to recover damages for breach of contract. Ellis v Gold, 204 A.D.2d 261, 262 (2d Dep’t 1994). The First Department has similarly held: Obtaining a home improvement contractor's license is neither a ministerial act nor a mere technicality (Blake Elec. Contr. Co. v Paschall, 222 AD2d 264, 266, 635 N.Y.S.2d 205 [1st Dept 1995]; Matter of Heller [Clark Constr. Corp.], 178 AD2d 195, 195 [1st Dept 1991]). Rather, "strict compliance with the licensing statute [i.e. Administrative Code § 20-387] is required, with the failure to comply barring recovery regardless of [*8] whether the work performed was satisfactory, whether the failure to obtain the license was willful or, even, whether the homeowner knew of the lack of a license and planned to take advantage of its absence" (Chosen Constr. Corp. v Syz, 138 AD2d 284, 286, 525 N.Y.S.2d 848 [1st Dept 1988]; see [**4] B & F Bldg. Corp. v Liebig, 76 NY2d 689, 564 N.E.2d 650, 563 N.Y.S.2d 40 [1990]; Blake Elec. Contr. Co., 222 AD2d 264; Mortise v 55 Liberty Owners Corp., 102 AD2d 719, 477 N.Y.S.2d 2 [1st Dept 1984], affd 63 NY2d 743, 469 N.E.2d 529, 480 N.Y.S.2d 208 [1984]). KSP Constr., LLC v LV Prop. Two, LLC, 2024 N.Y. App. Div. LEXIS 348, 204 NYS3d 54 (2d Dep’t 2024). 21 of 24 FILED: NASSAU COUNTY CLERK 03/18/2024 08:00 PM INDEX NO