WDF Inc. v Mar-Sal Pumbing & Heating Inc.

2024 NY Slip Op 31438(U)

April 22, 2024

Supreme Court, New York County

Docket Number: Index No. 653520/2018

Judge: Debra A. James

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.
NYSCEF DOC. NO. 116 

INDEX NO. 653520/2018 

RECEIVED NYSCEF: 04/22/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. DEBRA A. JAMES 

Justice 

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WDF INC., 

Plaintiff, 

- V -

MAR-SAL PLUMBING & HEATING INC., 

Defendants. 

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PART 59 

INDEX NO. 653520/2018 

MOTION DATE 10/02/2023 

MOTION SEQ. NO. 001 002 

DECISION + ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 001) 41, 42, 43, 44, 45, 

46,47,48,49,50,51,52,53,54,55,83,84, 101,102,103,104,106,108,109,110,111,113 

were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER) 

The following e-filed documents, listed by NYSCEF document number (Motion 002) 56, 57, 58, 59, 60, 

61, 62, 63, 64,65, 66,67,68,69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79,80, 81, 82, 85,86,87, 88, 89, 90, 

91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 105, 107, 112, 114 

were read on this motion to/for JUDGMENT-SUMMARY 

ORDER 

Upon the foregoing documents, it is 

ORDERED that the motion of the defendant Mar-Sal Plumbing & 

Heating Inc. for summary judgment dismissing the complaint (causes 

of action for breach of contract and sounding in promissory 

estoppel) is DENIED (motion sequence number 001); and it is further 

ORDERED that the motion of the plaintiff WDF Inc. for summary 

judgment on its complaint is DENIED (motion sequence number 002); 

and it is further 

ORDERED that, as the Note of Issue was filed on July 28, 2022 

(NYSCEF Document Number 39), counsel are directed to confer with 

653520/2018 WDF INC. vs. MAR-SAL PLUMBING & HEATING 

Motion No. 001 002 

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NYSCEF DOC. NO. 116 

INDEX NO. 653520/2018 

RECEIVED NYSCEF: 04/22/2024 

the Clerk of Trial Assignment Part 40 on the date set for mediation 

and/or trial. 

DECISION 

In this action alleging breach of contract and promissory 

estoppel public works construction project, both parties move for 

summary judgment. 

On September 19, 2013, defendant Mar-Sal Plumbing & Heating 

Inc. ("Mar-Sal"), a plumbing and heating subcontractor, submitted 

to plaintiff WDF Inc. ("WDF"), as the prime contractor, a proposal 

for plumbing work in connection with WDF's bid on a project of 

non-party Dormitory Authority of the State of New York. (NYSCEF 

Document Number 45). 

On December 20, 2013, WDF was awarded the project by the nonparty Dormitory Authority of the State of New York, but Mar-Sal 

did not commence the plumbing work despite attending the preconstruction kickoff meeting. WDF asserts that it was ultimately 

forced to complete the plumbing work without Mar-Sal and alleges 

that as a result of Mar-Sal's breach of the plumbing subcontract, 

it incurred significantly greater cost in carrying out its contract 

with the Dormitory Authority. 

Mar-Sal argues that it did not commence the work because WDF 

provided additional drawings that expanded the scope of the 

plumbing work beyond what was initially proposed by Mar-Sal. WDF 

contends that the additional drawings were merely detailed 

653520/2018 WDF INC. vs. MAR-SAL PLUMBING & HEATING 

Motion No. 001 002 

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INDEX NO. 653520/2018 

NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 04/22/2024 

specifications for the work, which had been already proposed by 

Mar-Sal, and that the additional drawings did not expand the scope 

of work. WDF also submits the letter to Joseph Krajczewksi, WDF 

vice president of operations, dated May 12, 2014, signed by MarSal president Salvatore Marullo, which states 

"Unfortunately Mar-Sal Plumbing & Heating Inc. cannot 

proceed with this project. We discovered there where 

(sic) many mistakes done with the pricing of this project 

and our previous estimator under priced it, we are truly 

sorry for any inconvenience this may caused (sic) your 

company but for this reason we choose to pull back from 

this agreement." 

It is undisputed that there was no signed written contract 

between the parties. 

However, there are issues of fact whether Mar-Sal's 

attendance at a pre-construction kick off meeting and 

participation in the vetting process were "unequivocally 

referable" to the unsigned construction agreement to perform the 

plumbing work, which partial performance would remove same from 

the purview of the statute of frauds. See HPP Ice Rink, Inc v 

New York Islanders, 251 Ad2d 249 (l3t Dept 1998). 

Moreover, as with the Letter of Intent that was the subject 

of the opinion of the First Department, Appellate Division in 

Bed & Beyond Inc v IBEX Constr, LLC, (52 AD3d 413, 414 [l3t Dept 

2008]), the statement that "A formal contract will be forwarded 

shortly", in the Letter of Intent that WDF sent to Mar-Sal, does 

653520/2018 WDF INC. vs. MAR-SAL PLUMBING & HEATING 

Motion No. 001 002 

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INDEX NO. 653520/2018 

RECEIVED NYSCEF: 04/22/2024 

not amount to an express reservation of rights. Nonetheless, 

as this court finds there is an ambiguity as to the scope of 

work thereunder, there remains a question of fact as to the 

terms of such binding agreement. See Blume v Jacobwitz, 212 

AD3d 403 (1 st Dept 2023) 

In addition, there are numerous triable issues on the claim 

sounding in promissory estoppel, as to whether Mar-Sal "'made a 

clear and unambiguous promise, upon which [plaintiff] reasonably 

relied, to its detriment'" (Bunkoff Gen Contrs v Dunham Elec, 

300 AD2d 976, 978 [3d Dept 2002]). 

As to the claim for damages, WDF does not come forward with 

evidence that establishes the extent that Mar-Sal's failure to 

complete the plumbing work in accordance with its bid proposal 

decreased WDF' s return under its contract with non-party owner 

Dormitory Authority, and therefore no summary monetary judgment is 

warranted. See Spilman v Matyas, 212 AD3d 859, 860 (2d Dept 2023) 

4/22/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

~ CASE DISPOSED 

GRANTED 0 DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

653520/2018 WDF INC. vs. MAR-SAL PLUMBING & HEATING 

Motion No. 001 002 

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20240422154508DJAMES18861050F53341299684A194A479E21D 

P-~ fl - } ~ 

DEBRA A. JAMES, J.S.C. 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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