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  • Bergassi Group Llc, N.Y. Materials Llc, Mvm Construction Llc v. Consolidated Edison Company Of New York Inc. Commercial Division document preview
  • Bergassi Group Llc, N.Y. Materials Llc, Mvm Construction Llc v. Consolidated Edison Company Of New York Inc. Commercial Division document preview
  • Bergassi Group Llc, N.Y. Materials Llc, Mvm Construction Llc v. Consolidated Edison Company Of New York Inc. Commercial Division document preview
  • Bergassi Group Llc, N.Y. Materials Llc, Mvm Construction Llc v. Consolidated Edison Company Of New York Inc. Commercial Division document preview
						
                                

Preview

FILED: WESTCHESTER COUNTY CLERK 04/19/2013 INDEX NO. 56860/2012 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 04/19/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER --------------------------------------------------------------------X BERGASSI GROUP LLC., N.Y. MATERIALS LLC. AND MVM CONSTRUCTION LLC., Index No. 56860/2012 Plaintiffs, -against- CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant. --------------------------------------------------------------------X PLAINTIFF BERGASSI GROUP LLC.’S REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO RENEW AND REARGUE PRELIMINARY STATEMENT Plaintiff Bergassi Group LLC. (“Bergassi”) brings this motion to have its claims restored that were dismissed in this Court’s January 3, 2013 decision (“Decision’) in response to Consolidated Edison Company of New York, Inc.’s (“Con Edison”) motion to dismiss. The Court is referred to the Affidavit of Edmund J. Bergassi, Affidavit of Michael C. Delisa and Reply Affidavit of Edmund J. Bergassi for factual support for this Memorandum of Law and the moving Memorandum of Law. After the Decision was released, Bergassi discovered new, previously unknown, information that it did not have access to until that point. This new evidence revealed that Con Edison released funds to Qualcon more than 12 times after November 7, 2011 - the date Bergassi filed its lien. Con Edison even made payments to Qualcon after it filed for bankruptcy. And since Con Edison failed to contest this new fact in its opposition papers, Con Edison has now admitted these payments were made to Qualcon after the Bergassi lien was filed. Thus, the Court’s holding that “indeed, it was not until at least a week after Con Ed released the funds at the end of October that Bergassi filed its lien on November 7” (Decision, 37) was based on inaccurate information presented by Con Edison. It is respectfully submitted that this new evidence should fundamentally alter this Court’s rationale relied upon in dismissing the Bergassi claims. Bergassi properly filed its mechanic’s lien, relied on assurances by Con Ed that it would get paid, and nevertheless, Con Edison released payments to Qualcon after Bergassi filed its lien. Based on this new evidence, Bergassi’s claims are essentially analogous to its co- plaintiffs who successfully pleaded viable causes of action as held in the Decision. Most importantly, this new evidence reveals critical factual disputes that can now only be resolved through discovery and possibly trial. In light of these very clear factual disputes, this Court should not dismiss Bergassi’s claims in a motion to dismiss, since, as stated in the Decision, “the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim . . . To qualify as ‘documentary’, the evidence relied upon must be unambiguous and undeniable” (emphasis added)(Decision, 21-22). In dismissing Bergassi claims, this Court stated that it relied on “undisputed and documentary facts” (Decision, 38), but based on the new evidence presented in this motion, those “facts” have been proven to be untrue. Therefore, the Court should grant Bergassi’s motion to renew and/or reargue. ARGUMENT POINT ONE IT IS WITHOUT QUESTION THAT GENUINE FACTUAL DISPUTES EXIST RELATING TO CON EDISON’S PAYMENTS TO QUALCON 2 The reason courts are reluctant to grant the relief requested in a motion to dismiss is that facts are often not resolved that early in a litigation. Mary Imogene Bassett Hosp. v. Hospital Plan, Inc., 89 A.D.2d 240, 455 N.Y.S.2d 416 (4th Dept. 1982) (motion to dismiss seldom granted unless moving papers conclusively establish that plaintiff does not have a cause of action). As stated in the Decision, “The pleading is to be liberally construed and the pleader afforded the benefit of every possible favorable inference.” (Decision, 20). see also Rovello v. Orofino Realty Co., Inc., 40 N.Y.2d 633, 389 N.Y.S.2d 314 (1976). Based on the evidence before it, the Decision relied on inaccurate information contained in Con Edison’s moving papers causing the Court to believe that “it was not until at least a week after Con Ed released the funds at the end of October that the Bergassi filed its lien on November 7” (emphasis added) (Decision, 37). Now that Bergassi has proven to the Court that Con Edison released funds to Qualcon on more than 12 occasions after November 7, 2011, this Court is faced with a significant factual dispute relating to the dates on which Con Edison made payments to Qualcon, how many payments were made to Qualcon, and why Con Edison continued to make payments to Qualcon after being served with Bergassi’s lien. Bergassi’s causes of action should not be set aside in this motion to dismiss – a drastic remedy – when triable issues of fact exist. While the Court relied on “documentary evidence” in the Decision, it was misled by Con Edison’s moving papers. No documentary evidence exists in this case that would prove Con Edison released all funds allegedly owed to Qualcon prior to Bergassi filing its lien. Since the Decision states that “the Court is required to determine whether the proponent of the pleading has a cause of action” (Decision, 20), and Bergassi is entitled to “every possible favorable inference” (Decision, 20), and Con Edison has admitted that it made payments to 3 Qualcon after Bergassi filed its lien – meaning the Bergassi lien was binding on Con Edison prior to when it released funds to Qualcon – and the alleged documentary evidence is now in dispute, it is hereby requested that Bergassi’s five causes of actions for trust fund diversion, breach of fiduciary duties, conversion, constructive trust and negligence be restored. Bergassi has demonstrated through the new evidence that it has viable cause of action, and further, Bergassi has raised triable issues of fact relating to claims made by Con Edison in its motion to dismiss. The Court is respectfully referred to Bergassi’s moving memorandum of law where each of these causes of action is addressed in detail. POINT TWO DUE TO CON EDISION’S ADMISSION, THERE ARE FACTS IN DISPUTE, AND THE COURT SHOULD REJECT THE MOTION TO DISMISS UNDER CPLR 3211(d) BECAUSE FACTS ARE UNAVAILABLE CPLR 3211(d) sets forth: (d) Facts unavailable to opposing party. Should it appear from affidavits submitted in opposition to a motion made under subdivision (a) or (b) that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion, allowing the moving party to assert the objection in his responsive pleading, if any, or may order a continuance to permit further affidavits to be obtained or disclosure to be had and may make such other order as may be just. As stated above, the facts relating to the timeliness of Con Edison’s payments to Qualcon for the fraudulent bond discharge are unclear and in dispute. Bergassi was only able to bring this motion because it received information from an attorney not involved in this case (see Affidavit of Michael C. Delisa in moving papers) regarding Con Edison’s payments to Qualcon after Bergassi filed its lien. Without being allowed to conduct discovery in this action, Bergassi has been forced into a significant disadvantage. For example, Con Edison was clearly not forthcoming in the prior motion in failing to mention that it made payments to Qualcon after 4 Bergassi filed its lien. Therefore, it is respectfully requested that the Court deny the motion to dismiss based on the new evidence, grant the motion to renew and reargue, and/or utilize CPLR 3211(d) to allow Bergassi to fully litigate this case by engaging in discovery and proving its claims. POINT THREE CON EDISON’S OPPOSITION PAPERS ARE PROCEDURALLY FLAWED Con Edison failed to provide this Court with an affidavit of an employee or representative with personal knowledge of the facts at issue in the motion. An attorney affirmation from Con Edison’s legal counsel, who does not have a basis for actual and personal knowledge, is not acceptable and cannot be relied upon to defeat Bergassi’s motion herein. It is respectfully requested that this Court reject this affirmation and not consider it. Once Bergassi identified the triable issues of fact presented in this case relating to Con Edison’s payments to Qualcon, this issue could not be addressed by Con Edison through an attorney affirmation. While it has long been a requirement that summary judgment motions include an affidavit by a person with knowledge of the facts under CPLR 3212, Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980), an attorney affirmation from Con Edison cannot properly address factual disputes posed by this motion under CPLR 3211. Further, Points 2, 3, 4, 5 and 6 in Con Edison’s memorandum of law address issues that were previously reviewed in the Decision, and this Court did not affirmatively rule in Con Edison’s favor on any of these arguments. Therefore, it is unclear why Con Edison is raising these issues in opposition to this motion to renew and reargue. These points appear more like the arguments in a cross-motion, which was not brought. Remarkably, Con Edison even refers this Court to its memorandum of law filed in a motion to renew and reargue that Con Edison 5 currently has pending before this Court, which demonstrates its failure to address the issues posed by this motion. It is respectfully submitted that Bergassi has presented a very clear legal issue in this motion – has Bergassi met the standard for a motion to renew and reargue under CPLR 2221 for this Court to grant the relief sought based on this new evidence presented? None of the arguments in Points 2, 3, 4, 5 and 6 in Con Edison’s Memorandum of Law are probative on this question presented in the instant motion and should therefore be rejected. POINT FOUR BERGASSI’S CLAIMS DO NOT NEED TO BE IDENTICAL TO CO-PLAINTIFFS Con Edison argues in its opposing memorandum of law that it is necessary for Bergassi to prove that its causes of action are identical to those pleaded by co-plaintiffs. This argument is without basis in law, and Con Edison fails to cite any case that would cause such a requirement. Con Edison argues that despite the new evidence presented in this motion, Bergassi cannot properly plead public trust diversion because it did not file its lien prior to Con Ed filing and withdrawing the interpleader action and the fraudulent lien discharge bonds being issued, and further, there were no communications between Con Edison and Bergassi regarding the validity of lien and assurances that funds were being retained. The only burden that Bergassi must meet here is that the new evidence provides it with a cause of action. Bergassi has met its burden under CPLR 2221 by presenting the Court with “new facts not offered on the prior motion” that would cause the Court to “change the prior determination,” since the failure to present such facts during the prior motion have a “reasonable 6 justification” - the facts were discovered after the Decision was released and were not a part of the public record nor easily discoverable. As addressed in detail in Bergassi moving memorandum of law, Bergassi has met the pleading requirements for trust fund diversion. The newly discovered evidence places Bergassi in a similar position to its co-plaintiffs to the extent that: (a) it relied on contractual procedural safeguards from Con Ed that it would get paid; (b) it served Con Ed with a lien, giving Con Ed actual notice that Qualcon had not paid him; and (c) subsequent to this notice, Con Ed released payments to Qualcon, without requiring that said lien be discharged through a duly issued bond. Further, there is no evidence in the record - especially since no discovery has been conducted – as to the degree of communication between Bergassi and Con Edison prior to Bergassi filing its lien. It has not been alleged by Con Edison by someone with personal knowledge that no such conversations were held with Bergassi regarding the validity of the lien and funds being retained, similar to those between Con Edison and the co-plaintiffs. This void in the record is another good example of why Bergassi should be provided with the opportunity to conduct discovery to help prove its claims against Con Edison. Finally, while Con Edison questions Bergassi citing to Land-Site Contr. Corp. v Marine Midland Bank, N.A., 177 A.D.2d 413, 414 (1st Dept, 1991), Bergassi stands by this case as supportive of its claims. This motion is based on newly discovered and previously unavailable evidence that establishes that Con Edison made payments to Qualcon after Bergassi served its lien, and therefore, Con Edison had actual and/or constructive notice that Qualcon had not paid Bergassi. Bergassi is a beneficiary to a statutory trust created by Article 3-A of the New York Lien Law, similar to co-plaintiffs, since it gave notice to Con Edison, through its lien, that it had not been paid, and Land-Site Contr. Corp. is supportive of this point. 7 CONCLUSION For all those reasons stated above, Bergassi’s motion for renewal should be granted, and its causes of action for: (1) trust fund conversion under Article 3-A of the lien law; (2) breach of fiduciary duty; (3) conversion; (4) a constructive trust; and (5) negligence should be reinstated; and Plaintiff’s motion to reargue should be granted finding that Bergassi filed a valid public improvement lien. Dated: New Rochelle, New York April 18, 2013 Respectfully submitted, /s/James Maisano James Maisano, Esq. Attorney for Plaintiff BERGASSI GROUP LLC. 93 Wilson Drive New Rochelle, NY 10801 (914) 636-1621 8