Joseph Suozzo, Plaintiff(s), v. RUSSELL GELLER (2026)

The following papers were read on Defendant's Motion for SUMMARY JUDGMENT,

Defendant's Notice of Motion, Affirmation and Exhibits 1

Plaintiff's Affirmation in Opposition and Exhibits 2

Plaintiff commenced this proceeding by summons and complaint dated March 23, 2022, seeking a judgment of specific performance, and damages in the amount of $5,050,000 for pain and suffering in connection with plaintiff's 1973 Buick Centurion Convertible.

Now, defendant moves for summary judgment pursuant to CPLR 3212 seeking dismissal of the complaint on the grounds that there are no issues of material fact regarding the transaction between the parties and that plaintiff has failed to establish meritorious causes of action. In support of its motion, defendant annexes, inter alia, an affirmation authored by defendant Russell S. Geller (Geller), President and Dealer Principal for defendant Beck Chevrolet Co., Inc. (Beck); a Repair Order dated October 4, 2021; a demand letter dated March 14, 2022; a Freedom of Information Law request letter; a repair notations document; and a New York State Department of Motor Vehicles Investigative Report.

Plaintiff opposes the motion and argues that defendants' motion is frivolous insofar as it is devoid of merit. Plaintiff posits that the instant motion was filed merely to delay and prolong litigation and the affirmations annexed to the motion contain factual misrepresentations regarding the date when plaintiff initially left his vehicle with defendant. In support, plaintiff annexes, inter alia a prior decision and order dated April 15, 2024.

Summary judgment is a drastic remedy which a court should employ only when there is no doubt as to the absence of triable issues of fact (Andre v Pomeroy, 35 NY2d 361 [1974]). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issues of fact and entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986] and Winegrad v New York University Medical Center, 64 NY2d 851 [1985]). The party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to the non-moving party (see Assaf v Ropog Cab Corp., 153 AD2d 520 [1st Dept 1989]). It is well-settled that issue finding, not issue determination, is the key to summary judgment (see Rose v Da Ecib USA, 259 AD2d 258 [1st Dept 1999]). Summary judgment will only be granted if there are no material, triable issues of fact (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]).

If the moving party fails to make such prima facie showing, then the court is required to deny the motion, regardless of the sufficiency of the non-movant's papers (Winegrad v New York Univ. Med. Center, 4 NY2d 851, 853 [1985]). However, if the moving party meets its burden, then the burden shifts to the party opposing the motion to establish by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure to do so (Zuckerman v City of New York, 49 NY2d 557 [1980]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833[2014]; Vega v Restani Construction Corp., 18 NY3d 499, 503 [2012]).

The court will first address plaintiff's breach of contract cause of action against defendant Beck. To prevail on a cause of action for breach of contract, plaintiff must demonstrate the existence of a contract, plaintiff's performance, defendant's breach, and resulting damages (Harris v Seward Park Hous. Corp., 79 AD3d 425 [1st Dep 2010]).

This Court finds that defendant has failed to make a prima facie showing of entitlement to a summary determination on this cause of action.

Defendants assert that there is no contract between the parties. Defendants argue that Beck performed limited repairs on plaintiff's vehicle and refused further repairs after discovering that plaintiff's vehicle had been previously modified and further repairs would have posed a hazard. Defendants annex a Repair Order dated October 4, 2021, which they assert indicates the repairs defendants performed. Moreover, defendants posit that Beck is not obligated to perform any further repairs.

Geller, in his affirmation, avows that plaintiff brought his vehicle to Beck in early October 2021 and the annexed Repair Order was created itemizing the repairs Plaintiff requested. He further avers that after commencing repairs, the technician at Beck discovered the hazardous condition of the vehicle and concluded that attempting further repairs would be unsafe. As such, Beck refused to perform any more work on the vehicle. Beck informed plaintiff of their decision and requested that Plaintiff remove his vehicle from the premises. After plaintiff refused, Beck, via its attorneys, sent a demand letter dated March 14, 2022, demanding plaintiff remove his vehicle.

Contrary to defendants' argument, although there is not a written agreement that obligates Beck to perform additional repairs, here the undisputed facts are sufficient to establish that Plaintiff and Beck entered into an oral contract for repairs, sufficiently memorialized by the annexed Repair Order. Defendants own undisputed statements and conduct are contrary to the theory that no contract exists between the parties. Geller avers that the Repair Order was generated to itemize the specific repairs that plaintiff requested. Furthermore, the Repair Order contains Beck's prices for each service and language expressly authorizing Beck to perform the work. Thus, the Repair Order is a sufficient memorandum to establish that there was a clear meeting of minds (see Papaioannou v Britz, 285 AD 596 [1st Dept 1955]; see also Renk v. Renk, 188 AD3d 502 [1st Dept 2020]).

The court notes that the Repair Order annexed by defendants appears unsigned. However, an issue of fact remains insofar as plaintiff alleges in his complaint that he signed a written contract, which appears to be in reference to the Repair Order, and defendants fail to clarify whether the unsigned copy it annexes is the only copy it retains or if there is a copy signed by plaintiff in its records. Furthermore, even assuming, arguendo, that defendants were to argue that the Repair Order was never signed and the lack of plaintiff's signature precludes defendants from any contractual liability, this argument would also be belied by defendants undisputed conduct. Geller attests specifically that Beck replaced the ignition switch and switch connectors on the vehicle before any issues arose. The court is not persuaded that Beck would have substantively begun work on plaintiff's vehicle absent a mutual understanding of an existing agreement between the parties. Thus, the court finds that plaintiff has properly pleaded a breach of contract claim.

With respect to plaintiff's allegation that Beck breached their agreement by refusing to complete all the repairs he requested at their initial meeting, the court finds that triable issues of fact remain. It is undisputed that Beck failed to complete all the repairs it initially agreed to perform on plaintiff's vehicle. However, defendants offer no evidence of any business policy permitting Beck to decline previously agreed upon services upon discovery of certain risks, nor does the Repair Order contain any such provision. Even assuming, arguendo, that defendants were to assert the vehicle's alleged hazardous conditions rendered performance impossible, the instant record is insufficient to warrant summary judgment. Geller, who avers that he is the President and Dealer Principal of Beck fails to establish any expertise in automobile mechanics. Accordingly, the court affords little weight to his assertion that further attempts at repair posed a fire hazard and liability risk. Furthermore, the document submitted by defendants that appears to contain notations regarding the repairs and the hazardous conditions is unclear as to its authorship and lacks proper foundation. Defendants have otherwise failed to submit any affidavit from a qualified expert to substantiate these assertions. As such, defendants fail to meet their burden of establishing entitlement to a summary determination of this claim.

Turning to plaintiff's tortious interference claim against defendant Geller. Only a stranger to a contract such as a third party can be liable for tortious interference (Ashby v ALM Media, LLC, 110 AD3d 459 [1st Dept 2013]). Insofar as plaintiff's allegations regarding Geller's conduct seemingly constitute actions taken in his capacity as principal for defendant Beck, in this instance he does not constitute a stranger to the contract. As such, this cause of action must be dismissed as against Geller as plaintiff fails to state a claim of individual liability as against him.

The court notes that in plaintiff's complaint plaintiff posits the theory that Geller's conduct was motivated by an intent to convert ownership of plaintiff's vehicle. In turn, defendant in its motion offers a defense to any conversion claims plaintiff may be asserting. The court is unclear as to whether plaintiff seeks to allege conversion as a cause of action against either defendant, or if plaintiff attempts to argue that Geller's alleged tortious conduct in converting plaintiff's vehicle gives rise to Geller being individually liable on the breach of contract claim. Nonetheless, insofar as this is an ongoing conversation in the record, the court now weighs in.

Irrespective of plaintiff's purpose for alleging a scheme to convert ownership of his vehicle, this claim is without merit. Neither party disputes that the vehicle has remained at Beck's premises due to plaintiff's refusal to recover possession. Defendants have submitted sufficient evidence of their requests for plaintiff to retrieve his vehicle to repudiate any allegations of an intent to convert the property. Contrary to plaintiff's assertions in his complaint, wherein he alleges that Beck is "holding the vehicle hostage demanding payment for the work it alleges it did" (Suozzo complaint at 8), the demand letter dated March 14, 2022 clearly indicates that defendant offered to waive any associated fees, including storage fees, if plaintiff retrieved his vehicle on or before March 30, 2022, and subsequent to that date would only charge the applicable storage fees. Plaintiff has offered no evidence to suggest that defendants have since demanded payment. Furthermore, plaintiff is clear in the pleadings that he seeks a judgment ordering Beck to complete the repairs on his vehicle, and not the mere return of the vehicle. Therefore, any conversion claim plaintiff asserts must be dismissed.

Similarly, plaintiff has failed to submit sufficient evidence to establish that defendant Geller engaged in any independent tortious acts or omissions giving rise to individual liability (A.L. Eastmond & Sons, Inc. v Keevily, Spero-Whitelaw, Inc., 107 AD3d 503 [1st Dept 2013] [holding that defendant's chief executive officer (CEO) could not be held individually liable when plaintiff failed to allege any acts or omissions by defendant's chief executive officer that are independent of any acts he performed within the scope of his employment]; Gateway Intl., 360, LLC v Richmond Capital Group, LLC, 201 AD3d 406 [1st Dept 2022]["a corporate officer who participates in the commission of a tort may be held individually liable, regardless of whether the corporate veil is pierced"]). As such, plaintiff's breach of contract claim, as against Geller, if so asserted, must also be dismissed.

The court will also address the specific performance relief plaintiff seeks. In determining the availability of specific performance as a remedy the court must consider both whether the usual remedy of monetary damages would be inadequate and whether " the desired performance is the kind of act or acts that the court can direct and that there can be little or no dispute whether or not there has been compliance" (Ratner v Tavern-On-The-Green, Inc., 11 Misc 2d 564 [Sup Ct 1958][citing Breeden v Hopkins, 210 AD 412 [1st Dept 1924]]).

Here, plaintiff has neither paid defendants for the requested services nor retrieved the vehicle or incurred any costs to complete the originally intended repairs elsewhere. Nevertheless, the complaint seeks compensatory and punitive damages for alleged pain and suffering arising from the delay in repairs, as well as for loss of use of the vehicle. These allegations undermine plaintiff's request for specific performance, as they reflect his own position that monetary damages would constitute an adequate remedy, an assessment with which the court agrees. Accordingly, plaintiff is precluded from seeking specific performance as an additional remedy.

All other arguments the court could discern have been considered and need not be addressed given the findings above.

Accordingly, it is hereby

ORDERED that, defendants' motion for summary judgment is granted only to the extent that, plaintiff's tortious interference claim is dismissed; any claims plaintiff may be asserting for conversion are dismissed; plaintiff complaint is dismissed in its entirety as against defendant Russell S. Geller; and plaintiff is precluded from any specific performance relief; and it is further

ORDERED that, the remaining branch of defendants' motion seeking dismissal of plaintiff's breach of contract action is denied; and it is further

ORDERED that, the parties shall appear for a pre-trial conference in Part 21 on June 30 ,2026 at 9:30 am; and it is further

ORDERED that, the parties shall be prepared to discuss settlement and/or pick dates for trial.

This constitutes the decision and order of the Court.

May 5, 2026

HON. TAISHA L. CHAMBERS, A.J.S.C.

Taisha L. Chambers, J.