SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 48 X PHOENIX CONTRACTING GROUP, INC., Index No.: 651193/2010 -against- Plaintiff, NOTICE OF APPEAL WEST END ENTERPRISES, LLC, WEST 60 STREET ASSOCIATES, LLC, VJB CONSTRUCTION CORP., WESTCHESTER FIRE INSURANCE COMPANY, SESTITO INFISSI USA CORP. and "JOHN DOE NO. 1" Through "JOHN DOE No. 100", HON. JEFFREY K. OING Defendants. PLEASE TAKE NOTICE that the plaintiff hereby appeals to the Appellate Division of the New York Supreme Court in and for the First Department from a Pre-Trial Decision and Order dated August 16, 2016 in this matter that was entered in the Office of the Clerk of the Supreme Court, New York County on the 18th of August, 2016, which Order has: 1. precluded plaintiff from seeking to recover costs incurred by plaintiff for work done and materials received prior to February 28, 2009, except retainage at trial (Said costs include material that defendants West End Enterprises, LLC and West 60th Street Associates, LLC received and would not allow Phoenix Contracting Group, Inc. to bill for while still demanding that plaintiff sign lien waivers before being paid.); and 2. Permits defendants West End Enterprises, LLC, West 60th Street Associates, LLC, VJB Construction Corp. and Westchester Fire Insurance Company to submit evidence with respect to damages incurred due to delays allegedly caused by plaintiff; 1 of 12
and this appeal is taken from the portion of the Pre-Trial Decision and Order that orders that plaintiff may not seek to recover costs incurred by plaintiff for work and material prior to February 28, 2009 except to the extent that any retainage (as that term is defined in the Subcontract) remains unpaid; and the portion that states that plaintiffs pre-trial application to preclude defendants from submitting evidence with respect to damages incurred due to delays caused by plaintiff was denied.. Dated: Milford, Connecticut February 27, 2017 YOURS, etc. LINA C. TANG, Attorney for Plaintiff 420 Gulf Street Milford, CT 06460 (313)408-7079 Lctangl 0@gmail.com TO: HON. MILTON TINGLING County Clerk, New York County BELKIN BURDEN WENIG & GOLDMAN, LLP Attorneys for Defendants West End Enterprises, LLC, West 60th Street Associates, LLC, VJB Construction Corp. And Westchester Fire Insurance Company 270 Madison Avenue New York, New York 10016 (212) 867-4466 SAM GDANSKI, ESQ. Attorney for Defendant Sestito Infissi USA Corp. 517 Forest Drive Teaneck, New Jersey 07666 (914) 589-001 samgdanski@gdanski. com 2 of 12
SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION, FIRST DEPARTMENT X Supreme Court PHOENIX CONTRACTING GROUP, INC., Index No.: 651193/2010 -against- Plaintiff-Appellant, CIVIL APPEAL PRE ARGUMENT STATEMENT WEST END ENTERPRISES, LLC, WEST 60 STREET ASSOCIATES, LLC, VJB CONSTRUCTION CORP., WESTCHESTER FIRE INSURANCE COMPANY, SESTITO INFISSI USA CORP. and "JOHN DOE NO. 1" Through "JOHN DOE No. 100", Defendants-Respondents.. X 1. Title of Action: Phoenix Contracting Group, Inc. v. West End Enterprises, LLC, West 60 Street Associates, LLC., VJB Construction Corp., Westchester Fire Insurance Company, Sestito Infissi USA Corp. and "John Doe No. 1" through "John Doe No. 100", 2. This action was commenced against all defendants as set forth above, except later Sestito Infissi USA Corp. was joined as an additional defendant in this action. The original title when commenced was Phoenix Contracting Group, Inc. v. West End Enterprises, LLC, West 60 Street Associates, LLC., VJB Construction Corp., Westchester Fire Insurance Company and "John Doe No. 1" through "John Doe No. 100". 3. Appellant/Plaintiffs counsel: Lina C. Tang, Esq. 420 Gulf Street Milford, CT 06460 (313)408-7079 Ictangl 0@gmail.com 4. Attorneys for Defendants/Respondents Jeffrey Goldman, Esq. BELKIN BURDEN WENIG & GOLDMAN, LLP 3 of 12
Attorneys for West End Enterprises, LLC, West 60th Street Associates, LLC, VJB Construction Corp. and Westchester Fire Insurance Company 270 Madison Avenue New York, New York 10016 (212) 867-4466 JGoldman@BBWG.com SAM GDANSKI, ESQ. Attorney for Sestito Infissi USA Corp. 517 Forest Drive Teaneck, New Jersey 07666 (914) 589-0015 samgdanski@gdanski.com 5. Court and County from which appeal is taken: Supreme Court, New York County. 6. The appeal is being taken from a Pre-Trial Decision and Order dated August 16, 2016 in this matter that was entered in the Office of the Clerk of the Supreme Court, New York County on the 18th of August, 2016. 7. There is no related action or proceeding now pending in any court of this or any other jurisdiction. 8. The nature and object of the causes of action were foreclosure of a mechanic's lien, breach of contract, breach of the implied covenant of good faith of a construction subcontract to install commercial windows and assorted related material. The relief sought was money damages. 9. Result reached in the court below: was the Court disallowed the plaintiff/appellant from seeking damages at trial for material that was received prior to the execution of a lien waiver but was billed for and was not paid for by the owner who also told plaintiff not to bill for any additional material delivered yet still insisted plaintiff execute partial lien waivers to receive any payment. The Court also denied plaintiffs request that defendants be precluded from submitting evidence of delay damages at trial. 4 of 12
10. Grounds for seeking reversal and modification: The lower court erred in that it failed to allow plaintiff/appellant to pursue costs of materials that were not billed for because the requisitions were only used to track money paid, not job progress and the defendant owners would not pay plaintiff for it, despite plaintiffs billings and then directed plaintiff to execute lien waivers to receive payment for work installed and to stop billing for material. The appellant seeks reversal of the lower court's ruling denying plaintiffs request that the defendants be precluded from submitting evidence of alleged delay damages because a document submitted by defendants set forth the dates of completion, and those dates were crossed out and bore the language "Schedule to follow" and that said document was not listed in the contract documents as being part of the contract nor was it signed by the parties. The document was also created by the defendant and contains conflicting statements in regards to plaintiffs responsibilities versus the language in the signed contract. 11. There is no additional appeal in this action. Dated: Milford, Connecticut February 27, 2017 YOURS, etc. UNA C. TANG, ESQ. Attorney for Plaintiff/Appellant 420 Gulf Street Milford, CT 06460 (313)408-7079 LctanglO(o),gmail.com TO: BELKIN BURDEN WENIG & GOLDMAN, LLP Attorneys for Defendants/Respondents West End Enterprises, LLC, West 60th Street Associates, LLC, VJB Construction Corp. And Westchester Fire Insurance Company 270 Madison Avenue 5 of 12
New York, New York 10016 (212) 867-4466 SAM GDANSKI, ESQ. Attorney for Defendant/Respondent Sestito Infissi USA Corp. 517 N. Forest Drive Teaneck, New Jersey 07666 samgdanski@gdanski.com 6 of 12
[FILED: NEW YORK COUNTY CLERK 08/18/2016 02/27/201710:37 03:15 AM] PM INDEX NO. 651193/2010 NYSCEF DOC. DOC. NO. NO. 98 101 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/18/2016 02/27/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL PART 48 PHOENIX CONTRACTING GROUP, INC., -against- Plaintiff, WEST END ENTERPRISES, LLC, WEST 60T.H STREET ASSOCIATES, LLC., VJB CONSTRUCTION CORP., WESTCHESTER'FIRE INSURANCE COMPANY, SESTITO INFISSI USACORP. and "JOHN DOE NO. 1" through "JOHN DOE NO. 100", Index No.: 651193/2010 PRE-TRIAL DECISION AND ORDER Defendants. JEFFREY K. OING, J.: Familiarity with the underlying facts is presumed (2/24/15 Transcript, NYSCEF Doc. No. 63). Briefly stated, plaintiff commenced this action against defendants based upon defendants' alleged failure to pay monies owed to plaintiff pursuant to a construction subcontract between the parties involving plaintiff s installation of windows on property owned by defendants West End Enterprises, LLC and West 60th Street Associates, LLC (the "Subcontract") (Id. at p. 4). Defendants asserted counterclaims for, inter alia: (1) damages due to delays caused by plaintiff; and (2) liquidated damages provided for under the Subcontract. l of 6 7 of 12
Index No.: 651193/2010 Page 2 of 6 PRE-TRIAL DECISION AND ORDER On February 24, 2015, this Court granted defendants' motion for summary judgment, in part, dismissing all of plaintiff's claims except for foreclosure of mechanic's lien and breach of contract (2/24/15 Transcript, NYSCEF 63). This Court also I limited plaintiff's recovery under its breach of contract action.. to claims arising after February 28, 2009, as lien waivers in the record demonstrated that plaintiff had been paid through that date (Id. at pp. 5-11). In its pre-trial brief, plaintiff makes a pre-trial application for this Court: (1} to determine that plaintiff may seek to recover certain purportedly 'unpaid costs incurred by plaintiff for work and material prior to February 28, 2009; (2) to determine that plaintiff may seek to recover withheld retainage for material and labor; and (3) to preclude defendants from submitting any evidence of damages due to delays caused by plaintiff as the dates upon which defendants premise this claim are invalid. For the reasons set forth below, plaintiff's pretrial application is denied.! i Plaintiff seeks to recover certain unpaid costs incurred for work and material set forth in its July 2008 requisition and February 2009 requisition, as well as for work it claims it never 2 of 6 8 of 12
Index No.: 651193/2010 Page 3 of 6 PRE-TRIAL DECISION AND ORDER billed for or performed outside of the Subcontract. To allow plaintiff to seek to recover such costs would contradict this Court's prior ruling that plaintiff's breach of contract claim is limited to costs incurred subsequent to February 28, 2009. This Court premised its ruling on the March 25, 2009 lien release executed by plaintiff in which it clearly and unambiguously acknowledged that, as of February 28, 2009 "all wages, materials, social security taxes, withholding taxes, sales and use taxes, permits, subcontractors and material men have been fully paid out of and to the extent of amounts received by the undersigned for all work performed and materials supplied through the date hereof" (Partial Lien Release, Phoenix Pre-Trial Br., Exs. E, F). In 'addition, the lien release expressly stated that plaintiff had been paid for "all services rendered, work done and material furnished by [Phoenix] in any and all capacities through the date hereof" ad.). As this issue has already been judicially determined, it will not be disturbed in the absence of "extraordinary circumstances" (Spector v Cushman & Wakefield, Inc.. 34 Misc 3d 1204(A) [Sup Ct 2011], affd. 100 AD3d 575 [1st Dept 2012] [internal quotatibns omitted]). Plaintiff has failed to set 3 of 6 9 of 12
Index No.: 651193/2010 Page 4 of 6 PRE-TRIAL DECISION AND ORDER forth any facts to show such extraordinary circumstances exist here. Rather, plaintiff reiterates the arguments it made at oral argument, namely that the lien waivers plaintiff signed did not reflect the entire amounts it was owed, but that plaintiff nevertheless executed these waivers because it would not receive subsequent payments if it had refused to do so. This argument is no more compelling the second time, as it is once again supported solely by allegations of counsel -and the self-serving affidavits of plaintiff's CEO, James Barbara, which are conclusory and speculative (Barbara Aff., Phoenix Pre-Trial Br., Ex. A; Barbara. Reply Aff., Phoenix Pre-Trial Reply Br., Ex. K). The lien releases did not, however, release plaintiff's claim for retainages (i.e., the percentage of monies earned and billed by plaintiff which defendants retained until the completion of the Subcontract) (Subcontract at 4, Phoenix Pre- Trial Br., Ex. B), because there is no dispute that these amounts were due after February 28, 2009 and that they have been withheld by defendants (West End Pre-Trial Br. in Opp. at pg. 13, fn 9). Accordingly, this Court's prior ruling does not bar plaintiff from seeking to recover unpaid retainages. 4 of 6 10 of 12
Index No.: 651193/2010 Page 5 of 6 PRE-TRIAL DECISION AND ORDER Plaintiff also argues that defendants should be precluded from introducing evidence supporting their counterclaims for damages and liquidated damages due to delays.caused by plaintiff. Plaintiff first argues that because these claims are based upon plaintiff s failure to meet specific deadlines which were crossed out in the Subcontract they are therefore invalid. A review of the Subcontract reveals that a question of fact exists as to whether these dates were in fact crossed-out. Accordingly, this issue must be resolved at trial. Plaintiff next argues that defendants' liquidated damages claim is invalid because it is based upon a contractual provision set forth in Exhibit B to the Subcontract, entitled "Scope of Work." Plaintiff argues that, section 31 of the Subcontract which states that "this writing [i.e.. the Subcontract] including documents incorporated herein by reference, constitutes the entire agreement" -- means that Exhibit B is not a part of the Subcontract because it. is not explicitly incorporated by reference. This assertion both misreads section 31 of the Subcontract and is entirely undercut by the fact that plaintiff includes Exhibit B as part of the contract in its Pre-Trial Brief (Subcontract, Phoenix Pre-Trial Br., Ex. 2). 5 of 6 11 of 12
Index No.: 651193/2010 Page 6 of 6 PRE-TRIAL DECISION AND ORDER Finally, defendant Sestito Infissi USA Corp.'s pre-trial application to be dismissed from this action is unsupported and insufficient to warrant such relief at this juncture. Accordingly, it is ORDERED that plaintiff may not seek to recover costs incurred by plaintiff for work and material prior to February 28, 2009 except to the extent that any retainages (as that term is defined in the Subcontract) remain unpaid; and it is further ORDERED that plaintiff's pre-trial application to preclude defendants from submitting evidence with respect to damages incurred due to delays caused by plaintiff is denied; and it is further ORDERED that defendant Sestito Infissi USA Corp.'s pre-trial application to be dismissed from this action is denied; and it is further ORDERED that counsel shall appear in Part 48 on September 27, 2016 at 10 a.m. for a pre-trial conference. This memorandum opinion constitutes the decision and order of the Court. Dated: HON. JEFFREY K. OING, J.S.C. JEFFREY K. Qlf.o ^.c. 6 of 6 12 of 12