### 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

Op30001(U), are republished from various New York State and local governmentsources, including the New

York State Unified Court System's eCourtsService. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 116 INDEX NO. 653520/2018 RECEIVED NYSCEF: 04/22/2024 

### SUPREMECOURTOFTHE STATEOF NEWYORK NEWYORKCOUNTY PRESENT: HON. DEBRAA.JAMES Justice

---------------------------------------------------------------------------------X

WDF INC., Plaintiff,

- V - MAR-SAL PLUMBING&HEATING INC., Defendants.

---------------------------------------------------------------------------------X PART 59
INDEXNO. 653520/2018 MOTION DATE 10/02/2023 MOTION SEQ. NO. 001 002 DECISION

### +ORDERON MOTION

Thefollowing e-filed documents, listed by NYSCEFdocument 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 wereread onthis motionto/for SUMMARYJUDGMENT(AFTERJOINDER) Thefollowing e-filed documents, listed by NYSCEFdocument 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 wereread onthis motionto/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

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### [* 1]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

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### [* 2]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

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### 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 CHECKONE:
APPLICATION: CHECKIFAPPROPRIATE:

# ~ CASEDISPOSED GRANTED 

# 0 DENIED SETTLEORDER INCLUDESTRANSFER/REASSIGN

653520/2018 WDF INC.vs. MAR-SAL PLUMBING &HEATING Motion No. 001 002
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# P-~ fl- }**~** 20240422154508DJAMES18861050F53341299684A194A479E21D DEBRAA.JAMES,J.S.C. NON-FINALDISPOSITION GRANTEDIN PART SUBMITORDER FIDUCIARYAPPOINTMENT

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