Opinion
2019–12457 Index No. 704723/17
04-27-2022
TRISTATE CLEANING SOLUTIONS, INC., appellant, v. LANDCO H & L, INC., et al., respondents.
Silverberg, P.C., Central Islip, NY (Karl Silverberg of counsel), for appellant. Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Lake Success, NY (Christopher A. Gorman and John S. Cahalan of counsel), for respondents.
Silverberg, P.C., Central Islip, NY (Karl Silverberg of counsel), for appellant.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Lake Success, NY (Christopher A. Gorman and John S. Cahalan of counsel), for respondents.
VALERIE BRATHWAITE NELSON, J.P., CHERYL E. CHAMBERS, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Marguerite A. Grays, J.), entered September 27, 2019. The order, insofar as appealed from, granted that branch of the defendants’ motion which was for summary judgment dismissing the first cause of action, alleging breach of contract, and granted that branch of the defendants’ motion which was for summary judgment dismissing the fourth cause of action, alleging diversion of trust funds pursuant to Lien Law article 3–A, insofar as asserted against the defendants Bally Bao and Loung Construction, Inc.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants’ motion which was for summary judgment dismissing the fourth cause of action insofar as asserted against Bally Bao and Loung Construction, Inc., and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff, Tristate Cleaning Solutions, Inc., alleges that it entered into a contract to perform what it characterizes as "Phase II" asbestos removal services at a parcel of real property owned by the defendant Landco H & L, Inc. (hereinafter Landco). Its first cause of action, asserted against Landco and the defendant Loung Construction, Inc. (hereinafter Loung), a general contractor, alleges that Landco and Loung breached the contract by failing to pay the plaintiff the principal sum of $642,613. Its fourth cause of action, asserted against Landco, Loung, and the defendant Bally Bao, Loung's principal, alleges that Landco, Loung, and Bao diverted Lien Law article 3–A trust funds, rather than using those funds to pay the plaintiff. In an order entered September 27, 2019, the Supreme Court, inter alia, granted that branch of the defendants’ motion which was for summary judgment dismissing the first cause of action, and granted that branch of the defendants’ motion which was for summary judgment dismissing the fourth cause of action insofar as asserted against Bao and Loung. The plaintiff appeals.
"The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach" ( Investment Retrievers, Inc. v. Fox, 150 A.D.3d 1090, 1090, 52 N.Y.S.3d 662 ). "To create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms" ( Matter of Express Indus. & Term. Corp. v. New York State Dept. of Transp., 93 N.Y.2d 584, 589, 693 N.Y.S.2d 857, 715 N.E.2d 1050 ).
Here, the defendants established, prima facie, that Landco and Loung did not enter into a contract with the plaintiff for Phase II asbestos removal work. In opposition to the motion, the plaintiff failed to raise a triable issue of fact as to the existence of a contract. Therefore, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action to recover damages for breach of contract (see Landow & Landow Architects, LLP v. Tenzer, 136 A.D.3d 985, 25 N.Y.S.3d 361 ; Carione v. Hickey, 133 A.D.3d 811, 20 N.Y.S.3d 157 ; Brandeis Sch., Inc. v. Yakobowicz, 130 A.D.3d 850, 15 N.Y.S.3d 64 ).
The Supreme Court erred, however, in granting that branch of the defendants’ motion which was for summary judgment dismissing the fourth cause of action insofar as asserted against Loung and Bao. The defendants failed to meet their prima facie burden of demonstrating that Loung was not in possession of trust assets within the meaning of Lien Law § 70 (see generally Matter of RLI Ins. Co., Sur. Div. v. New York State Dept. of Labor, 97 N.Y.2d 256, 264, 740 N.Y.S.2d 272, 766 N.E.2d 934 ; Teves v. Greenspun, 159 A.D.3d 1105, 1106, 72 N.Y.S.3d 191 ; Ippolito v. TJC Dev., LLC, 83 A.D.3d 57, 70–71, 920 N.Y.S.2d 108 ).
BRATHWAITE NELSON, J.P., CHAMBERS, WOOTEN and ZAYAS, JJ., concur.