PIZZAROTTI LLC v. MDB DEVELOPMENT CORP (2026)

Peckar & Abramson, P.C., New York (Brian D. Waller of counsel), for appellant.

Cole Schotz P.C., New York (Wendy Chavez of counsel), for respondent.

Judgment, Supreme Court, New York County (Andrew Borrok, J.), entered on November 25, 2025, awarding defendant the principal amount of $442,000, and bringing up for review an order, same court and Justice, entered on or about November 6, 2025, which determined that defendant was entitled to that amount in damages without the need for a trial, unanimously modified, on the law, without costs, to vacate so much of the judgment as awarded defendant recovery with respect to requisition number 10, and to remand to Supreme Court for a trial on damages with respect to that requisition, and otherwise affirmed, without costs.

Plaintiff, in its capacity as a construction manager, retained defendant as a concrete subcontractor.  The subcontract was for $4 million and permitted plaintiff to hold $400,000 as retainage.  This Court previously determined as a matter of law that defendant was entitled to summary judgment on liability on its counterclaim for breach of contract because it substantially completed its work on the project and plaintiff wrongfully terminated the contract (Pizzarotti, LLC v. MDB Dev. Corp., 241 AD3d 1182, 1183 [1st Dept 2025] [hereinafter Pizzarotti I ] ).

On remand, the motion court solicited letter briefs and proposed judgments from the parties.  The court rejected plaintiff's request that the court hold a trial on damages and properly determined, with respect to requisition numbers 11 and 12, which concern the retainage, that a damages trial was not required.  Once defendant substantially performed its contractual obligations, it was entitled to the retainage less the cost of any correction of defects in its performance (see F. Garofalo Elec. Co. v. New York Univ., 300 A.D.2d 186, 189 [1st Dept 2002] ).  Plaintiff contends that defendant cannot be entitled to the full retainage amount without a damages trial because it did not prove it completed the unresolved punch list items referenced in the parties' emails.  However, plaintiff failed to respond to defendant's representation that the punch list items had been completed (see Pizzarotti I, 241 AD3d at 1183), nor does it otherwise raise a triable issue of fact whether any deductions from the retainage are warranted.  As there is no dispute over the amount of the retainage, or that the retainage was covered by requisition numbers 11 and 12, the fact that requisition number 12 was not authenticated and is for $300,000 does not compel a different result.

However, there are issues of fact regarding damages for requisition number 10.  The record contains three versions of the requisition, dated November 27, 2017, January 30, 2018, and March 15, 2018.  In each successive version, the value of the requisition changes from $42,000 to $30,800 to $27,720.  It is unclear from the record which version of requisition number 10 is controlling, and thus the principal amount of damages and the interest accrual date for requisition number 10 cannot be determined as a matter of law.

Supreme Court properly determined that collateral estoppel does not preclude defendant from seeking to recover the amounts demanded in requisition number 10.  The partial satisfaction of lien filed by defendant in connection with a related mechanic's lien enforcement action, which reduced its lien amount from $1,035,230.97 to $400,000, was related to the contract retainage, and there is no indication that requisition number 10 was at issue in that litigation.  Accordingly, it cannot be said that any issue regarding requisition number 10 was “actually litigated and decided” (Gersten v. 56 7th Ave. LLC, 88 AD3d 189, 201 [1st Dept 2011] ).

We have considered plaintiff's remaining contentions and find them unavailing.