ROOS v. KING CONSTRUCTION (2020)

DECISION & ORDER

ORDERED that the judgment is reversed, on the law, with costs, those branches of the plaintiff's motion which were for summary judgment on the causes of action alleging breach of contract and conversion and diversion of trust funds are denied, the order dated September 28, 2015, is modified accordingly, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith.

This action involves, inter alia, an alleged breach of a construction contract.  During the construction of the plaintiff's home, the parties had various disputes regarding the work flow of the project and the coordination of construction.  The plaintiff ultimately terminated the defendants' work prior to the completion of the project.  Thereafter, the plaintiff commenced this action seeking, inter alia, damages for breach of contract and conversion and diversion of trust funds.  The plaintiff sought cost-of-completion damages and the return of a payment in the sum of $50,000 that, according to the plaintiff, constituted diverted trust funds.  The Supreme Court partially granted the plaintiff's motion for summary judgment and entered a judgment awarding damages after an inquest.  The defendants appeal.

We note that the defendants' prior appeal from the order dated September 28, 2015, was dismissed by a decision and order on motion of this Court dated July 5, 2017, for failure to timely perfect.  While the defendants ordinarily would be precluded from relitigating the issues which could have been raised on the prior appeal (see Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 754, 697 N.Y.S.2d 866, 720 N.E.2d 86;  Bray v. Cox, 38 N.Y.2d 350, 353, 379 N.Y.S.2d 803, 342 N.E.2d 575), under the circumstances of this case, we exercise our discretion to determine the issues raised on the instant appeal from the judgment (see Solomon v. Green Bay Sanitation Corp., 164 A.D.3d 854, 854–855, 79 N.Y.S.3d 539;  Saunders v. Tarsia, 124 A.D.3d 620, 620, 997 N.Y.S.2d 909;  Ravina v. Hsing Hsung Chuang, 95 A.D.3d 1288, 1288–1289, 945 N.Y.S.2d 411).

A party seeking summary judgment bears the initial burden of demonstrating its prima facie entitlement to the requested relief (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Zuckerman v. City of New York, 49 N.Y.2d 557, 559, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298).  Only if that burden is met does the burden then shift to the party opposing summary judgment to tender evidence, in a form admissible at trial, sufficient to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d at 1068, 416 N.Y.S.2d 790, 390 N.E.2d 298).

The Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the causes of action alleging breach of contract and conversion and diversion of trust funds.  Regarding the breach of contract cause of action, the plaintiff failed to establish his entitlement to judgment as a matter of law.  Triable issues of fact exist, including which party was at fault for construction delays (see Buck Constr. & Dev., Inc. v. Hetzel, 165 A.D.3d 875, 876, 85 N.Y.S.3d 194) and whether the plaintiff breached the contract by preventing the defendants' performance (see Plainview S. & S. Concrete Co. v. NVNG Dev. Corp., 151 A.D.2d 654, 655, 542 N.Y.S.2d 714).  Regarding the causes of action alleging conversion and diversion of trust funds, the plaintiff's own submissions raise triable issues of fact as to whether, and to what extent, trust funds may have been diverted by the defendants (see Lien Law §§ 70, 71;  J. Petrocelli Constr., Inc. v. Realm Elec. Contrs., Inc., 15 A.D.3d 444, 447, 790 N.Y.S.2d 197;  cf. Wallkill Med. Dev., LLC v. Sweet Constructors, LLC, 83 A.D.3d 695, 696, 919 N.Y.S.2d 905).

As the plaintiff failed to satisfy his prima facie burden, the sufficiency of the defendants' opposition papers need not be addressed (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).  However, a review of the record reveals that the defendants' submissions raise further triable issues of fact.  As the defendants point out, their opposition to the plaintiff's motion was properly supported with admissible evidence and should have been considered as such by the Supreme Court.  A party opposing a motion for summary judgment may submit an attorney affirmation that annexes deposition testimony and other evidence instead of relying on affidavits of fact based upon personal knowledge (see Olan v. Farrell Lines, 64 N.Y.2d 1092, 1093, 489 N.Y.S.2d 884, 479 N.E.2d 229;  City of New York v. First Natl. Ins. Co. of Am., 79 A.D.3d 789, 790, 912 N.Y.S.2d 434;  Enriquez v. B & D Dev., Inc., 63 A.D.3d 780, 781, 880 N.Y.S.2d 701).

Therefore, we reverse the judgment and modify the order accordingly.

DILLON, J.P., BALKIN, CONNOLLY and IANNACCI, JJ., concur.