DWORKIN CONSTRUCTION CORP USA v. TIL MAR DESIGN INC (2018)

This is an action for breach of a subcontract relating to the construction of a restaurant. Plaintiff seeks damages based upon defendant's alleged refusal to perform certain aspects of the subcontract. Defendant counterclaims for plaintiff's alleged failure to pay under the subcontract.

Plaintiff now moves, pursuant to CPLR 3211(a)(1), (a)(5) and (a)(7), to dismiss defendant's counterclaim. Plaintiff also moves, pursuant to CPLR 3212, for summary judgment in its favor as to liability upon its claim against defendant.

BACKGROUND

Plaintiff and defendant entered into an agreement denominated a “Subcontract,” dated July 15, 2015, wherein defendant agreed to serve as a subcontractor for the construction of “Panda Express No.2499—3570 Horizon Blvd., Feasterville, Trevose, PA 19053.” The scope of defendant's work was to include “all floor and wall tile work, using UNION labor, in accordance with plans and specifications prepared by ERT Design Group, 75 Wesleyan Road, 1st Floor Smithtown, NY 11787 and Bohler Engineering, 1600 Manor Drive, Suite 200 Chailfont, PA 18914.” Plaintiff alleges that defendant refused to install the exterior tiles as contemplated under the contract. Plaintiff asserts that it terminated defendant for cause on or about September 1, 2015. Plaintiff filed this suit on April 25, 2017. Defendant's answer and counterclaim was filed on May 18, 2017.

DISCUSSION

A CPLR 3211(a)(1) motion to dismiss “is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Leon v. Martinez, 84 NY2d 83, 88). CPLR 201 permits the parties, by written contact, to adopt a shorter limitations period than that specified by statute (see Wayne Drilling & Blasting, Inc. v. Felix Industries, Inc, 129 AD2d 633).

“[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [internal citations omitted] ). Once prima facie entitlement has been established, in order to defeat the motion, the opposing party must “ ‘assemble, lay bare, and reveal his [or her] proofs in order to show his [or her] defenses are real and capable of being established on trial ․ and it is insufficient to merely set forth averments of factual or legal conclusions’ ” (Genger v. Genger, 123 AD3d 445, 447, quoting Schiraldi v. U.S. Min. Prods., 194 AD2d 482, 483). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v. Ceppos, 46 NY2d 223, 231).

In support of its motion to dismiss the counterclaim as time-barred, plaintiff relies on the “venue and limitation of action” clause of the subcontract, which states in pertinent part:

No action arising out of this agreement for any cause whatsoever, nor any affirmative defense or offset, shall be maintained against the Contractor by a Subcontractor or anyone claiming under the Subcontractor unless such action shall be commenced no later than six months after the completion of the Subcontractor's activity at the Jobsite (irrespective of punch list or warranty work occurring later) or contract termination.

This action was commenced on April 25, 2017, more than nineteen (19) months after defendant's last activity on the job site. In opposition, defendant argues, in conclusory fashion, that it was fraudulently induced to enter into the subcontract and should not be bound by the subcontract's limitations provision. Defendant's argument is not persuasive. It points to neither case law nor specific facts that warrant this court ignoring the plain and unequivocal language of the subcontract. The counterclaim is, thus, time barred in accordance with the limitations provision included in the subcontract.

In support of its motion for summary judgment, plaintiff submits the affidavit of Lawrence Dworkin, plaintiff's president, together with excerpts from the plans and specifications referred to in the subcontract. Plaintiff argues that the plans and specifications clearly show that the installation of exterior tiles was included as part of the subcontract. In opposition, defendant argues that the language in dispute, “all floor and wall tile work,” is susceptible to more than one interpretation. Weighing the parties' respective positions and filings, the court concludes that plaintiff has failed to tender sufficient evidence to establish the absence of a triable issue of fact. Accordingly, plaintiff is not entitled to summary judgment in its favor on its claim against defendant.

CONCLUSION AND ORDER

For the foregoing reasons, it is hereby

ORDERED that plaintiff's motion to dismiss the counterclaim, pursuant to CPLR 3211(a)(1) and (a)(5), is granted, and it is further

ORDERED that plaintiff's motion, pursuant to CPLR 3212, for summary judgment as to liability, is denied; and it is further

ORDERED that counsel are directed to appear for a preliminary conference in Room 581, 111 Centre Street, on April 26, 2018, at 9:30 a.m.

Robert R. Reed, J.