Resetarits Constr. Corp. v City of Niagara Falls., Index No. 2012-148017, 7/17/14 (Walker, J.)

CPLR 3211; CPLR 3212; Summary Judgment; Motion to Strike; Counterclaim

By: Annie Yang | Staff Writer

Plaintiff entered into a construction contract to renovate a building for Defendant. Defendant hired Wendel Duchscherer (“Wendel”) to provide professional services for the Project’s design and to administer the construction contract.

Plaintiff alleged that it had substantially completed the Project and that Defendant failed to fully compensate plaintiff for the completed work. Even though Defendant made partial payment, Plaintiff contended that additional funds were owed for the additional agreed-upon work performed.

Plaintiff moved for summary judgment and Defendant cross-moved for summary judgment pursuant to CPLR 3212.

Defendant provided Plaintiff with “Notice to Proceed” to establish a completion deadline of April 26, 2011. The Project had delays, and Defendant granted time extensions until July 30, 2011.

Wendell regularly notified Plaintiff of its failure to substantially complete the Project by detailed correspondence. The correspondence indicated the incomplete and/or defective items. On May 3, 2012, Wendel informed Plaintiff that the Project had not been substantially completed.

Plaintiff replaced its Project Manager three times, which contributed to the delays. Plaintiff failed to provide Defendant with all of the required warranty information and paperwork, master key to the building, and an underground “Tank Closure Report” as required by New York State Department of Environmental Conservation. The contract between Plaintiff and Defendant stated that the Project would not be considered substantially complete until Defendant received all of the before mentioned items.

In addition, Defendant contended that it is owed $61,212 for uncompleted work. Plaintiff performed defective work to windows and doors and the defective work required correction by a different contractor.

Defendant asserted three Affirmative Defenses and one Counterclaim. Defendant ended up withdrawing its First and Third Affirmative Defense. Defendant’s Second Affirmative Defense alleged that Plaintiff failed to mitigate its damages and its Counterclaim was for liquidated damages and related costs for Plaintiff’s failure to timely complete the Project.

Plaintiff moved to strike Defendant’s Second Affirmative Defense and Counterclaim for failure to comply with the Court’s May 1, 2013 Order granting Plaintiff’s motion to compel discovery. After June 16, 2014, Defendant submitted a copy of a letter, dated May 30, 2013, from its attorney to Plaintiff’s attorney with Defendant’s responses to the May 1, 2013 Order. The Court accepted the May 20, 2013 letter as proof of Defendant’s compliance with the May 1, 2013 Order.

Plaintiff did fail to complete the work on time and shall pay Defendant liquidated damages as specified in the contract. However, the Court could not conclude if the liquidated damages provision was “plainly or grossly disproportionate to the probable loss.”

Thus, Plaintiff’s motion for summary judgment and motion to strike Defendant’s Counterclaim and Second Affirmative Defense were denied. Plaintiff’s motion to strike Defendant’s First and Third Affirmative Defenses was denied as moot since Defendant withdrew them. Defendant’s cross-motion for summary judgment was denied.

Resetarits Constr. Corp. v City of Niagara Falls., Index No. 2012-148017, 7/17/14 (Walker, J.)



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