Dean Builders Grp., P.C. v. M.B. Din Constr., Inc.

186 A.D.3d 1612

131 N.Y.S.3d 664

DEAN BUILDERS GROUP, P.C., plaintiff/counterclaim defendant-respondent-appellant,

v.M.B. DIN CONSTRUCTION, INC., defendant/counterclaim plaintiff-appellant-respondent,Mohammed Chatha, defendant-appellant-respondent;

Fidelity and Deposit Company of Maryland, counterclaim defendant.

(Appeal No. 1)

Dean Builders Group, P.C., plaintiff/counterclaim defendant-respondent,

v.M.B. Din Construction, Inc., defendant/counterclaim plaintiff-appellant,Mohammed Chatha, defendant-appellant;

Fidelity and Deposit Company of Maryland, counterclaim defendant.

(Appeal Nos. 2 and 3)

2017-03451

2017-07855

2017-09098

Index No. 601466/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 28, 2020

September 30, 2020

King & King, LLP, Pelham, NY (Peter M. Kutil of counsel), for defendant/counterclaim plaintiff-appellant-respondent and defendant-appellant-respondent in Appeal No. 1 and defendant/counterclaim plaintiff-appellant and defendant-appellant in Appeal Nos. 2 and 3.

Muchmore & Associates PLLC, Brooklyn, NY (Andrew Muchmore and Marwan F. Sehwail of counsel), for plaintiff/counterclaim defendant-respondent-appellant in Appeal No. 1 and plaintiff/counterclaim defendant-respondent in Appeal Nos. 2 and 3.

LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant/counterclaim plaintiff and the defendant Mohammed N. Chatha appeal from (1) a judgment of the Supreme Court, Nassau County (Stephen A. Bucaria, J.), entered March 15, 2017, (2) an order of the same court entered June 9, 2017, and (3) a judgment of the same court entered July 14, 2017, and the plaintiff/counterclaim defendant cross-appeals from the judgment entered March 15, 2017. The judgment entered March 15, 2017, upon an order of the same court entered February 1, 2017, upon reargument, granting that branch of the plaintiff/counterclaim defendant's motion which was for summary judgment on the amended complaint insofar as asserted against the defendant/counterclaim plaintiff, is in favor of the plaintiff/counterclaim defendant and against the defendant/counterclaim plaintiff in the principal sum of $446,564.93. The order entered June 9, 2017, insofar as appealed from, upon reargument, vacated the judgment entered March 15, 2017, and thereupon granted the plaintiff/counterclaim defendant's motion for summary judgment on the amended complaint. The judgment entered July 14, 2017, upon the order entered June 9, 2017, is in favor of the plaintiff/counterclaim defendant and against the defendant/counterclaim plaintiff and the defendant Mohammed N. Chatha in the principal sum of $446,564.93.

ORDERED that the appeal and the cross appeal from the judgment entered March 15, 2017, are dismissed; and it is further,

ORDERED that the appeal from the order entered June 9, 2017, is dismissed; and it is further,

ORDERED that the judgment entered July 14, 2017, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff/counterclaim defendant.

The appeal and the cross appeal from the judgment entered March 15, 2017, must be dismissed, as that judgment was vacated by the order entered June 9, 2017. The appeal from the order entered June 9, 2017, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment entered July 14, 2017 (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order entered June 9, 2017, are brought up for review and have been considered on the appeal from the judgment entered July 14, 2017 (see CPLR 5501[a] ; Matter of Aho, 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).

The plaintiff/counterclaim defendant, Dean Builders Group, P.C. (hereinafter Dean), was the general contractor on a construction project to renovate a school for the New York City School Construction Authority (hereinafter the SCA). The defendant/counterclaim plaintiff subcontractor, M.B. Din Construction, Inc. (hereinafter M.B. Din), performed certain masonry work on the project. The defendant Mohammed N. Chatha, M.B. Din's president, personally guaranteed the subcontract and a series of subsequently executed riders. Dean asserts that during the course of the performance of the contract, it incurred $788,000 in additional expenses, allegedly as a result of M.B. Din's failure to pay its own employees, vendors, and suppliers, and its failure to pay employees' union benefits.

Dean commenced this action against M.B. Din and Chatha to recover the difference between the payments due under the subcontract and the amount Dean actually spent. M.B. Din's answer asserted several counterclaims, as well as affirmative defenses based on, inter alia, Chatha's personal guarantee on the riders being obtained through duress and coercion. Dean moved for summary judgment on the amended complaint against M.B. Din and Chatha, and the Supreme Court denied the motion. In an order entered February 1, 2017, the court, upon reargument, granted that branch of Dean's motion which was for summary judgment on the amended complaint insofar as asserted against M.B. Din. The court also denied M.B. Din's cross motion for summary judgment on its counterclaims insofar as asserted against Dean. On March 15, 2017, the court entered a judgment against M.B. Din in the principal sum of $446,564.93. Dean then moved for leave to reargue its summary judgment motion, and, upon reargument, the court, in an order entered June 9, 2017, granted Dean's motion for summary judgment on the amended complaint insofar as asserted against both defendants. The court also denied M.B. Din's cross motion for leave to reargue. On July 14, 2017, the court entered a judgment against M.B. Din and Chatha in the principal sum of $446,564.93. The defendants appeal.

"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" ( Legum v. Russo, 133 A.D.3d 638, 639, 20 N.Y.S.3d 124 ). In support of its position that it was entitled to summary judgment on the amended complaint insofar as asserted against M.B. Din, Dean submitted, inter alia, the subcontract between Dean and M.B. Din, an affidavit of Dean's president, copies of checks from M.B. Din to its employees, a series of assignments between Dean and the defendants, and copies of checks from Dean to M.B. Din's employees' unions and vendors. These submissions...