Tina KNAPP and Michael Knapp, Plaintiffs, v. FINGER LAKES NY, INC. d/b/a Diversified Contracting Co., and Joel S. Smith, Defendants.
Decided: May 09, 2017
APPEARANCES: Hodgson, Russ, LLP, 140 Pearl Street, Suite 100, Buffalo, New York 14202, Appearing on behalf of plaintiffs, by: Ryan Cummings, Esq., of Counsel LaFay, Byrne & LaFay, P.C., 36 West Main Street, Suite 770, Rochester, New York 14614, Appearing on behalf of defendants, By: Anthony P. LaFay, Esq., of Counsel
Plaintiffs have made a motion for an order: (1) granting summary judgment on their breach of contract and Lien Law claims against defendants; (2) dismissing defendants' counterclaims; (3) awarding plaintiffs $440,585.88 plus 9% interest, attorneys' fees, costs, and punitive damages. This action arises out of a home improvement contract dated September 13, 2014 to perform renovation work at plaintiffs' home located at 5781 West Lake Road, Conesus, NY, for $348,530.00.
Plaintiffs' motion for summary judgment on their breach of contract claim is denied. There are triable issues of fact as to the quality of workmanship done, as to the timeliness of the work performed, and as to defendants' alleged breach of the duty of good faith and fair dealing.
Plaintiffs' motion for summary judgment on their Lien Law Article 3–A claims is granted as to liability only. It is noted that plaintiffs' attorney represented at oral argument that no other contractors are due money under the contract, a representation which defense counsel acknowledged, and thus, a representative action is not required (Lien Law § 77). Moreover, defendants did not address the Lien Law claims in their opposition papers, and conceded at oral argument that a violation of the Lien Law occurred.
However, with respect to damages on their Lien Law claim, plaintiffs are not entitled to a return of all or a majority of the $240,530.00 they paid under the contract. Since work was performed by defendants under the contract, and the work is disputed and the subject of plaintiffs' breach of contract claim and defendants' counterclaim for breach of contract, any damages that plaintiffs would be entitled to recover are more appropriately determined under the breach of contract claim. More importantly, plaintiffs provide no controlling or persuasive authority which allows them to recover all or a majority of the monies they paid to defendants under the contract on their Lien Law claim, especially when work was performed by defendants under the contract. Indeed, there is nothing in Article 3–A of the Lien Law which allows plaintiffs to recover the specific damages they seek under the lien law, i.e., the payments they made to defendants under the contract. Even though an owner is protected under Article 3–A of the Lien Law, Article 3–A's primary purpose is to ensure the contractors who performed work are paid (Ippolito v. TJC Development, LLC, 83 AD3d 57, 64 [2d Dept 2011] ).
Based on the foregoing, plaintiffs' request to dismiss defendants' counterclaim and awarding plaintiffs $440,585.88 plus 9% interest, attorneys' fees, costs, and punitive damages is denied. In addition, as noted above, summary judgment on plaintiffs' breach of contract claim is denied, and summary judgment on plaintiffs' Lien Law claim is granted as to liability only.
Plaintiffs' counsel is directed to submit an order.
Evelyn Frazee, J.
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