INDEX NO.

52337/2016
NYSCEF DOC. NO. 45

RECEIVED NYSCEF: 10/27/2016

To commence the statutory

time for appeals as of right
(CPLR 5513[a]), you are
advised to serve a copy
of this order, with notice
of entry, upon all parties.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
PRESENT: HON. SAM D. WALKER, J.S.C.

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CREATIVE DIRECTION CONSTRUCTION
DESIGN, LLC,

&

Plaintiffs,
DECISION AND ORDER
Index No. 52337/2016
Motion Sequence 1
-againstCITY OF MOUNT VERNON
Defendant.

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The following papers were considered on the plaintiff's motion seeking summary
judgment against the defendant:
PAPERS
Notice of Motion/Affirmation/Affirmation/Exhibits
Affidavit in Support of Motion/Exhibits A-D
Affidavit in Support of Motion/Exhibits A-G
Affirmation in Opposition/Exhibit A-H
Affidavit in Opposition to Motion/Exhibit A-B
Affidavit in Opposition to Motion/Exhibit A
Affidavits in Opposition to Motion
Reply Affirmation

A-C

NUMBERED
1-5
6-10
11-18
19-27
28-30
31-32
33-34

35

Plaintiff moves for an Order pursuant to CPLR 3212, granting summary judgment
to the plaintiff, Creative. Direction Construction

& Design, LLC ("Creative Direction")

against the defendant, City of Mount Vernon (the "City"), in the sum of $234,065.09 plus
interest at the statutory rate from August 29, 2014; (b) in the alternative, pursuant to

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CPLR 3212, directing an immediate hearing on damages limited to those charges as to

which the City has raised an issue of fact; (c) pursuant to CPLR

3212, granting

summary judgment to the plaintiff Creative Direction, dismissing the City's counterclaim
for alleged

breach

of contract;

and (d) awarding

Creative

Direction

reasonable

attorneys' fees.
On or about March 24, 2014, Creative Direction entered into a contract with the
City to perform construction and renovation. work for a construction

project known as

Construction of the Emergency Operation Center's Rooms located at the Third Street
Firehouse

in the City of Mount Vernon

(the "Project")

for the contract

price of

$930,000.00 (the "Contract"), exclusive of change orders and/or other additional work.
In his capacity as President of Creative Direction, Andre Wallace is responsible for
Creative Direction's

billing methods, keeping track of amounts that should be invoiced,

paid and due, accounts receivables, amounts outstanding, etc.

Creative Direction, at the request of the City, performed additional construction
and/or change order work at the Project, including change order #1, change order #2,
change order #3, and change order #4, etc., in the additional sum of $187,545.69.
Creative Direction's total contract price for the Project, including retainage and change
order(s) work, is $1,148,881.26.

Creative Direction alleges that it fully performed its

obligations and duties under the Contract and sent invoices for an account balance for
services rendered to the City in the total sum of $1,148,881.26.

Creative Direction

further alleges that the City did not reject any labor and materials supplied nor ever
disputed the aforementioned applications for payment, invoLces, and account stated.

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On February

9, 2016, Mark A. Warren,

the City's Building

Commissioner,

approved Creative Direction's change order and stated the following:

Dear Council Members:
I respectfully request legislation from Your Honorable Body authorizing Change
Order #1 for the above referenced project with the Contractor, Creative
Direction Construction
and Design, LLC ... Funds to pay for this project are
available in the H3410.203.C882.
If this meets with the approval of Your
Honorable Body, would you kindly have the necessary legislation enacted for
the Change Order #1 request in the amount of $187,545.69.
Furthermore, on or about March 23, 2016, Maureen Walker, Comptroller of the
City of Mount Vernon, issued a letter approving Creative Direction's change order(s)
work stating, in pertinent part, the following:
Honorable Members:
Earlier today, my Office was asked by City Council member J.Y. Edwards to
attest to the accuracy and validity of change order #1 of $187,545.69 pursuant
to an existing contract with current City Council member A. Wallace. Said
Contract and work related to it predate the Councilman's present position.
It is the Opinion of this Office that appropriate legislation be enacted to allow for
proper payment for all work completed under the open contract so much so that
it can be closed and thereby accounted for in the 2015 capital project books and
records. The aforementioned change order appears to be proper.
To date, the sum of $234,065.09

(Change Order $187,545.69

+ Retainage

$46,519.40) remains outstanding and due from the City, no portion of which has been
paid although duly demanded. On or about June 11, 2015, Creative Direction filed a
Notice of Claim with the City of Mount Vernon. The City has yet to honor Creative
Direction's claim.
Plaintiff contends that the City breached its contract with respect to the labor and
materials provided as required to perform all construction work and that the City had
and has the duty and obligation to pay Creative Direction the sum of $234,065.09 plus
interest at the statutory rate from August 29, 2014.

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Plaintiff commenced

an action by the service of a Summons

and Verified

Complaint dated February 25, 2016, upon the City. Issue was joined by the City filing a
Verified Answer dated March 25, 2016, with nine (9) affirmative defenses and one (1)
counterclaim.

Creative Direction filed an Answer to defendant's

counterclaims

on or

about March 28, 2016.

The City's counterclaim

alleging that "the Contract was not completed, and/or

the work and materials provided was not in accordance with contract specification, was
defective and/or deficient", must be dismissed because to date, Creative Direction has
not received any notice from the City concerning
performed by the plaintiff.

any defective

or deficient

work

The City's counterclaim further alleging that "Defendant will

be required to retain a third party to complete the work and/or to correct the deficient
work" must also be dismissed because to date, Creative Direction has not received any
notice from the City concerning the same.

Plaintiff now seeks summary judgment and

other relief.
A party on a motion for summary judgment must assemble affirmative proof to
establish his entitlement to judgment as a matter of law. Zuckerman v. City of N. Y., 49
N.Y.2d 557,427
judgment

N.Y.S.2d 595, 404 N.E.2d 718(1980).

"[T]he proponent of a summary

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 offact," Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324(1986). Only when such a
showing has been made must the opposing party set forth evidentiary proof establishing
the existence of a material issue of fact, Winegrad v. New York Univ. Med. Ctr., 64
N.Y.2d 851, 853 (1985). In other words, the burden shifts to the party opposing the

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motion, who must then show the existence of material issues of fact by producing
evidentiary proof .in admissible form, in support of their position.
Plaintiff produced the parties' signed written contract along with various invoices
which reflect that the defendant failed to pay for services that the plaintiff provided. This
evidence was sufficient to establish a prima facie case for breach of contract, Yellow
Book Sales and Distribution Company, Inc,. v. Mantini, 85 AD.3d 1019, 925 N.Y.S.2d
646, 2011 N.Y. Slip Op. 05490 (2d Dept. 2011).
An account stated is an agreement between parties to an account based upon
prior transactions between them with respect to the correctness of the account items
and balance due, Jim-Mar Corporation v. Aquatic Construction, Ltd. 195 AD.2d 868,
600 N.Y.S.2d 790

"An agreement may be implied where a defendant retains bills

without objecting to them within a reasonable period of time or makes partial payment
on the account" American Express Centurion Bank v. Cutler, 81 AD.3d at 762, 916
N.Y.S.2d 622; Landau v. Weissman, 78 AD.3d 661, 662, 913 N.Y.S.2d 107.
Plaintiff established a prima facie case for an account stated, in that the plaintiff
provided invoices; application and certification for payment; a letter from the City's
Building Commissioner approving the work and requesting legislation from the City
Council for the payment; a letter from the Comptroller of the City approving the work
and requesting that appropriate legislation be enacted to allow for proper payment; and
an affidavit from the president of Creative Direction showing an outstanding balance of
$187,545.69 + retainage of $46,519.40.

In fact, the City paid the entire contract price

and the only payments that are outstanding are for change orders and retainage.
Based upon the record, the City did not reject any of the labor and materials provided

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nor did the City ever dispute Creative Direction's invoices in the sum of $245,065.09. All
the invoices were accepted by the City without objection. Moreover, the plaintiff filed a
Notice of Claim, dated June 11, 2015 against the City which the City has also failed to
prosecute.
Plaintiff has established a prima facie case for breach of contract and an account
stated by producing the parties' signed written contract along with various invoices
which reflect that the defendant failed to pay for services that the plaintiff provided.
Plaintiff also provided invoices that were mailed to the City and were accepted without
objection. Plaintiff has met its initial burden of establishing its entitlement to judgment as
a matter of law. The burden now shifts to the defendant to establish. triable issues of
fact.
In opposing the motion, the defendant is required to produce evidentiary proof,
in admissible form, sufficient to raise a triable issue of fact as to its defenses
Washington Mut. Bank, F.A. v. O'Connor, 63 AD.3d

at 833, 880 N.Y.S.2d 696; US

Bank Trust N.A. Trustee, 16 AD.3d at 408. Defendant, did oppose the plaintiff's claim
by filing an Answer as well as written opposition to the plaintiff's motion for summary
judgment.

In answering the plaintiff's Complaint, the defendant entered general denials

or asserted denials based upon information and belief as well as nine (9) affirmative
defenses and one (1) counterclaim. An answer containing general denials is insufficient
to defeat a motion for summary judgment, Bankers
Keesler, 49 AD.2d.

Trust of Rockland

County v.

918, 373 N.Y.S.2d 637 (2d Dept. 1975). Furthermore, general

denials in an answer are insufficient to raise an issue of fact, Anderson v. City of New
York, 258 AD.2d 588, 17 N.Y.S.2d 326, 329 (2d Dept. 1940). To succeed in defeating
6 of 11

the plaintiff's

motion for summary judgment,

the defendant

evidentiary proof in admissible form establishing

is required to produce

a triable issue of material fact, not

mere conclusions, hope, unsubstantiated allegations or assertions, Zuckerman v. City of

New York, 49 N.Y.2d 577.
Defendant's primary opposition to the plaintiff's motion for summary judgment is
based upon the plaintiff's failure to pay prevailing wages and failure to provide truthful
and certified payrolls, as well as the plaintiffs

performance of defective, deficient and

unacceptable work in violation of local building and fire codes.

It is settled that "no private right of action for the underpayment of wages exists
under Labor Law

S 220

until an administrative determination in the employee's favor has

been made and has gone unreviewed or has been affirmed" Marren v. Ludlam, 14
AD.3d

667, 669, 790 N.Y.S.2d 146; Pesantez v. Boyle Envtl. Servs., 251 AD.2d

11,

673 N.Y.S.2d 659; Matter of Pyramid Co. of Onondaga v. Hudacs, 193 AD.2d 924, 597
N.Y.S.2d 816). Moreover, such private right of action belongs only to those employees
who have been underpaid,
Ornamental

Matter of International

Iron Workers Local Union NO.6,

Assn.

AFL-CIO

of Bridge,

Structural

&

v. State of New York, 280

A.D.2d 713, 719 N.Y.S.2d 773; Matter of Yerry v. Goodsell, 4 AD.2d 395, 166 N.Y.S.2d
224. The statute makes clear, determination of a prevailing wage claim is, in the first
instance, the exclusive province of the fiscal officer and must be initially subjected to an
administrative

proceeding,

Labor Law

Suburban Pipeline Co., 259 AD.2d

220(6), (7), (8); Walck Bros. AG. Servo

V.

1004, 688 N.Y.S.2d 296). Even though, Creative

Direction may have had prior instances where it was found to have underpaid wages,
the City still has no standing in this instance to raise this issue since no administrative

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determination has been made that Creative Direction failed to pay prevailing wages to
any employee on this project.
On the issue of defective work, there is no notice provision in the contract
addressing this issue. Generally, the plaintiff should be provided with notice of the
claimed defects in its work product and/or services and given an opportunity to cure.
However, the record does not show that the City has ever claimed defective work on the
part of the plaintiff or for damages incurred as a result of the plaintiff's allegedly
defective work. The City in its opposition seems to be raising the issue of defective
workmanship for the first time.
Generally, on a motion for summary judgment, a bare affirmation of an attorney,
who demonstrates no personal knowledge of the matter, is unavailing and without
evidentiary value, Zuckerman v. City of NY, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404
N.E.2d 718). However, it is equally well established that this defect can be obviated by
the inclusion of other evidentiary proof in admissible form, alan v. Farrell Lines Inc., 64
N.Y.2d 1092, 1093,489 N.Y.S.2d 884, 479 N.E.2d 229. Here, the City's attorney stated
in his affirmation that he was trained in building code requirements, electrical code
requirements, and fire code requirements, He also stated that he personally inspected
the work performed by the plaintiff and found the work to be patently defective, deficient
and incomplete.

He further attached pictures detailing the condition of the building to

his affirmation in support of the City's claim. While the Court may deem the City's
attorney affirmation sufficient to raise questions of fact, the City's Attorney, however,
should be mindful of The Rules of Professional Conduct, codifying the "Advocate
Witness Disqualification Rule." [(22 NYCRR 1200) rule 3.7(a)].

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Furthermore,

it has been found that a construction

manager's certifications

of

contractor's work to owner, and receipt of payment from the owner, did not conclusively
establish

the contractor's

right to payment;

as to support

summary judgment,

and the contract authorized

payments

from the owner where

received

performance,

and provided that construction

construction

contractor's

motion for

manager to withhold

there was evidence

manager's certification

of unsatisfactory
of work did not

constitute evidence of proper performance or an acceptance of defective work,

R.P

Brennan General Contractors & Builders v. Bovis Lend Lease LMB, Inc., 47 A.D.3d 499,
849 N.Y.S.2d 545, 2008 N.Y. Slip Op. 00365 (1st Dept 2008).
In this instance, however, not a construction manager, neither the letter from the
building

commissioner

performance

nor the

or an acceptance

City

Comptroller,

of unsatisfactory

constitute

evidence

of proper

work by the City. Therefore, those

letters cannot be used to establish proper performance. In fact, neither letter made any
specific

reference

to the quality

of material

provided

nor work

being performed

satisfactory by plaintiff.
Since the Contract is void of a notice provision in the case of defective work,
there is no contractual

prerequisite for the City to recover for a claim based upon

defective work. On the other hand, the record does establish that the City may have a
claim for damages incurred as a result of the plaintiff's alleged defective work, as set
forth in the defendant's

counterclaim.

The existence of a counterclaim

of uncertain

amount does not preclude the grant of summary judgment in favor of the plaintiff on its
account-stated and [breach of contract] causes of action; however, execution and costs
should abide the resolution of the remaining claims, RPI Professional Alternatives, Inc.

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v. Citigroup Global Market, Inc. 61 AD.3d 618, 878 N.Y.S.2d 36, 2009 N.Y. Slip Op.
03454 (1st Dept. 2009) citing Gizzi v. Hall, 309 A.D.2d 1140, 1142, 767 N.Y.S.2d 469
(2003).
That being the case, the plaintiff, Creative Direction is entitled to summary
judgment based upon breach of contract and an account stated. However, execution
and cost should await a hearing based upon questions raised by the City in its
counterclaim regarding the work done by the plaintiff being defective, deficient and
incomplete.
With respect to the remaining affirmative defenses, the plaintiff has established
a prima facie case for breach of contract and an account stated by producing the
parties' signed written contract along with various invoices which reflect that defendant
failed to pay for services that plaintiff provided as well as invoices that were mailed to
the City and were accepted without objection. However, since the defendant did not
raise any of the affirmative defenses other than the ones raised above in opposition to
the plaintiff's motion for summary judgment, no triable issue of fact was raised in
response to the plaintiffs prima facie showing or as to the merits of any of the City's
[remaining] affirmative defenses, Nationstar Mortgage LLC v. Silveri, 126 A.D.3d 864, 7
N.Y.S.3d 158,2015 N.Y. Slip Op. 02102 (2d Dept., 2015). Therefore, by not raising the
remaining affirmative defenses in its opposition to the plaintiffs motion for summary
judgment, these affirmative defenses are deemed to have failed to raise triable issues of
fact.
Accordingly, the plaintiff's application for an Order pursuant to CPLR

3212,

granting summary judgment to the plaintiff Creative Direction against defendant the City

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in the sum of $234,065.09 plus interest at the statutory rate from August 29, 2014, is
GRANTED.

Plaintiff's

application

pursuant

to CPLR

3212,

granting

summary

judgment to the plaintiff Creative Direction dismissing the City's Counterclaim for alleged
breach of contract is DENIED. Plaintiff's application seeking an award of reasonable
attorneys' fees is DENIED.
The parties are directed to appear before the preliminary

conference

November 28, 2016 at 9:30am in Courtroom 811 on the City's counterclaim

the work done by the plaintiff being defective, deficient and incomplete.

part on
regarding

Payment of the

plaintiff's grant of $234,065.09, is to be held in abeyance pending the determination of a

hearing on the City's counterclaim.
sequence

1 was not addressed

To the extent any relief requested

in motion

by the Court, it is hereby deemed denied.

foregoing constitutes the Opinion, Decision and Order of the court.

Dated: White Plains, New York
November
, 2016

~&.~
. SAM D. WALKER, J.S.C.

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The