S.L. Victory Constr. & Dev. v 40-50 Brighton First Rd.

Apts. Corp.

2024 NY Slip Op 31051(U)

April 2, 2024

Supreme Court, Kings County

Docket Number: Index No. 506650/2021

Judge: Leon Ruchelsman

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
FILED: KINGS COUNTY CLERK 03/28/2024 02:24 PM INDEX NO. 506650/2021

NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 03/28/2024

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SUPREME COU:RT OF THE STATE OF NEW YORK 

COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 

--------- ------- ------------------------x 

S. L VICTORY CONSTRUCTION & DEVELOPMENT 

CORPORATION and 'T&S CONSTRUCTION CORP., 

plaintiffs, Decision Bnd order 

- again.st - Index No. 506650/2021 

40,--,50 BRIGHTON FIRST ROAD APARTMENTS CORP. 

and TKR PROPERTY SERVICES, INC., April 2, 2024 

Defendants, -- , ------------------- , ___ , ________ , _____ ,, __ ,X 

PRESENT: HON. LEON RUCHELSMAN Motion Seq. #2 & #3 

The defendant TKR Property Services Inc., [hereinafter 

'TKR'] has moved pursuant to CPLR §3212 seeking summary judgement 

dismissing the entire complaint. The plaintiff has cross-,moved 

seeking summary judgement. The motions have been opposed 

respectively. Papers were submitted by the parties and 

arguments held and after reviewing a11 the arguments, this court 

now makes the following determination. 

The plaintiffs are two construction companies that were 

hired to perform work at defendant's premises loc~ted at 40 

Brighton First Road and 50 Brighton First Road, both in Kings 

County. TKR was the inariagemerit company hired during the relevant 

time periods. The complaint alleges that plaintiff S. L Victory 

is owed $407, 1531 fci'r work performed and T&S Construction Corp., 

1 It should be noted that while the compiaiht asserts 

the c1mount owe.ci s; 1 i victory is $407; 153., the owner of s. I. Victory, Andrei 

Tsi.;irlet.ski. subm~tt~d an affidavit which states the amount owed is $407~ 162 

(Affidavit of Andred Tsiarletski, 9ll [NYSCEF Doc. No-.. 81] ) i a negligible dif.fererice 

of $9, 

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i-s owE3d $15_5., 9402 for work per.formed. The ahovI=:! noted parties 

have now moved seeking summary ju.dg.ement. The plai:ntiff argue.s 

they have p.;resented undisputed: evid:ence that they performe.c:i work 

and haye not been, paid for such wcrrk. 'rKR asse.-rts that as 

management company arid agent for the owner of the premises they 

-cannot ·be iiable .for any unpaid balances owed :t,11.e p-1-ainti.ffss 

Defendant 40-50 Brighton Firs·t Road Apartments. Cor_p •. ;_ ar_g_u_es 

there are quE3stions of fact whether a contract even existed and 

whether the ·plaintiff's. are, -e·ntitled to· all the invoices. they 

have .st.1.bmi tted. 

Conclusions . .of Law 

Where the material_ facts at issue iri a case a:r.e in dispute 

summary judgment cannot be granted ·(zucketman v. City of N·ew 

York,_ 4:9 NYS2d 557., 427 -NYS2d .595 [1980]), Generally, it i.s for 

_the jury, t_he trier of fact to determine the legal cause .of any . . 

injury, however, where -.only one copclus..;ion Il,la_y ·_be d:rawn .from the 

:E_acts. the11. :the question of iesal cause. may be decided by the 

t"iial court as a matter· of law (Marino V'. Jamison, JJ39 AD"3-d 1021, 

"1"36 NYS.3d 324 [ 2d .. Dept.., 2021) , 

It is well settled that to succeed upon a qlaim of breach of 

2 It should .be noted that whi.le the complaint asserts 

t'he amount owed ·Ti;,;-.S C::'on$truption is $15_5.,:9.40, the own.er o"f T&S Construction, Arkadi 

Shterenberg, submitted an affidavit which .states the amount owed is .$.104:, 640 

(A£fidavit of Arkadi Sht.erenberg, .11 [NY.SCEF Do_c. No. :sz)), _a difference of<$51, 300. 

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contract the plaintiff must establish the existence of a 

contract, the plaintiff's performance, the defendant's breach and 

resulting damages (Harris v. Seward Park Housing Corp., 79 AD3d 

425, 9 lJ NYS2d 161 [ pt Dept. , 2 010] ) . Further, as explained in 

Gianelli v. RE/MAX of· New York, 144 AD3d 861; 41 NYS3d 273 L2d 

Dept., 2016], "a breach of contract cause o.:E action fails as a 

matter of law in the absence of any showing that a specific 

provision of the contract was breached" (id). 

Of courser there can be no contract absent·a binding 

agreement between the partie_s. The plaintiffs insist that 

although there was nd coristrtictiori cdhtract, the parties 

understood that the plaintiffs would submit invoices of work 

performed and that if each invoice was accepted by the de.fendants 

and entered into their database for payment then automatic 

approval was assumed. Thus, this ''usage of trade" established· a 

meeting of the minds between the patties whibh is now 

enforceable. Indeed, UCC §l-3.03(c) states that a "'usage of 

trade' is i"lny practice or method of dealing having such 

r.'egUlarity of observance in a place, vocation, or trade as to 

justify an expectation that it will be observed with respect to 

the transaction in question. The existencE:! and scope of such a 

usage must be provj:':!d as facts. If it is established that such c.i 

usage is embodied in a trade code dr similar record, the 

interpretation of the record is a qμestion of law" (id). 

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.J-i.ow~v~-r, to .E:!stablish usage of t~ade as· a valid basis to 

ccmcl.t;i_de cl t;";Ontri;tCt exis.ted expert evidence is generally 

.necessary (Didzbalis v. Sheridan Transportation Company, ·.t062 WL 

3l619.b7.i [~LD.N.°Y. 2002]). There is no _e~pert testimony 

supporting the usage of trade in this case. Furthermore, the 

.aff ida.v"i ts submi tt:ed do· ·not fare .any better e:$t-ablishing contract 

formc}tion v;La: usa91:; of trade~- Tbt;; affidavits of the owri.e.rs of 

S. I. Victory artd T&S Construction both state that ~'once the work 

was p.e.-r:formed, and i,f .the wor.k was_ -done- si;itisfactorily, ';['l<::R w011·1ct 

a.dmit the d~b_t anr;i sufftciency of ·the wor:k done by Plaintiffs by 

placing a stai.nip of apptcival oh the 'invoices is·sued by the· 

Plaintiffs" ("Affidavit o·f Andrei Tsicl:r.tets)ci, 18 [NYSCEf Doc. 

No. 81], Affidavit of Arkadi Shterenberg, <JIB (NYSCEF Doc. No. 

82]) . Howe.ver, those self-serving assertions .canno-t be a·ftorp.ed 

any w•eight (.§..@, .Matter of Barney S-chogel Inc. ,. 12. B. R. 6 9'7 

rs .. o._N. Y. 1997]). 

The plaintiffs a_rgue that Howard Manciel -an pw:ner of TKR 

admitted the _invoice system described by the plaintiff's 

Ctinfi;cmed t.he us-age of trade sufficient ·to es.t-abli·sh the 

f orrnatton o:f ,a c9ntract :• However, a careful review o-f Mr. 

Mandel's testimony demonstrates that he did not admi.t the 

ac.ceptanc;·e of an invoice, from the pl~-intiff ,. s coristi tuted a::n 

acceptance of the contract. Rather, he me.rely t..e:sti.t:i~d th_at 

when the. invoice was received it_ was process:ed for payment.' That 

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p_roce.s.-s did not ine .. an a. contra-ct had been formed and that if a: 

subsequent review of the work warrantednon--:payment then a breach 

occurred. .Moreover, there axe serious questions wh_ether usage of 

tracle could ewen. he est·a};)lishl;'!d in this_: :case since i:h New· York 

such usage of tr,ade rriust be "so notorious" within the industry 

that every party· ·s·hould be aware of it {.British International 

Insurance Company .Ltd. v·. Segura s La Rep.ubl i ca, S . A. , 3 4 2 .F. 3d 78 

[2d. Cir. 2003]). There is no evidence .cif such pervasive .conduct 

throughout the industry.. Indeed, .:j_t is .-cl.iffi.cult to ass_.ert that 

a one-sided uncterstandin.g of contr::_act formati_on, isolated. to this . . 

case, could_ create t:ont:i:acts without the defendants l:iein:g awanI 

of the.ir existence·,. Thus, the me·~e processi.n.g of invofces doe-~ 

not foreclose later analysis of the propriety of the invoice in 

the tTr".st p1a·ce. There is no basi.s to a:rgue once t.he invq,.ice w_as 

processed the defendants. are fo.ret::l.osed from challf::!-n.girig or not 

paying the invoice based upon issues regarding the work 

perfo--rmed. Theref·cfre, there·. are s-μrely q11estio.ns o:f- fact. wl:let;:.he.r 

any contract was formed and consequentl_)'. whether the plaini:iffs 

are entitle.cl to summary judg·ement. Consequently, the p1·ai·ntif.f 1 ·s 

mc;:,tion seeking summary j.udge:ment is deni:.ed" . .. 

Turning to TKR' s motion seeking summary j udgernent ori the 

grounds .tt can. _have no tnd¢pendent liability as· an agent of the 

owne:r, the p1a-intiffs have not r.eally oppo.sed that motion qt_her 

thah to seek their own sμmmary judge~ent motion. Upbn a revi·ew 

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.of the evidence presented, TKR maint~ins nb independent 

responsibility pursuant to its agreement with the owner. 

Consequently, TKR's motion seeking summary judgement dismissing 

the lawsuit as to them is granted. 

So ordered. 

DATED: April 2, 2024 

Brooklyn N. Y. 

ENTER: 

Hon. 

JSC 

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