Lipco Electrical Corp., et al., respondents, v. (Action No. 2) (2014)

Argued—March 18, 2014

DECISION & ORDER

In two related actions, inter alia, to recover damages for breach of contract, the defendants in Action No. 1 appeal from so much of an order of the Supreme Court, Nassau County (Driscoll, J.), entered June 11, 2012, as denied their motion for summary judgment dismissing the complaint in Action No. 1.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint in Action No. 1. The defendants relied principally upon the plaintiffs' alleged judicial admissions of contract illegality, but “[c]ounsel's argument or opinion cannot constitute a judicial admission” (Rahman v. Smith, 40 AD3d 613, 615).   There remains a triable issue of fact as to whether ASG Consulting Corp., a defendant in Action No. 1, is a “successor” to TAP Electrical Consulting Service, Inc., also a defendant in Action No. 1, within the meaning of Labor Law § 220–b(3)(b), thereby rendering illegal the contracts upon which Action No. 1 is partially based (see Lipco Elec. Corp. v. ASG Consulting Corp., _ AD3d_ [Appellate Division Docket No. 2012–03565;  decided herewith];  see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320).

DILLON, J.P., HALL, COHEN and HINDS–RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court